Death Resurrected: The Reimplementation of the Federal Death Penalty
ChristopherQ. Cutler*
The question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment.... questions of this sort, or perhaps of any sort, are not settled by reason; they are settled by prejudices and sentiments or by emotion. When they are settled they do not stay settled, for the emotions change as new stimuli are applied to the machine.
Clarence Darrow'
INTRODUCTION Terre Haute, Indiana is a quiet town nestled on the banks of the Wabash River. In the days of canal transportation, and later when two major national highways nearby intersected, Terre Haute became known as the "Crossroads of America." The home to St. Mary-of- the-Woods Catholic College, the area maintains a Midwestern home- town feel where there might be respite from the hectic work-a-day world. This peace will soon be shaken, when the federal government, in the nearby federal penitentiary, takes the life of Juan Raul Garza. As the media descends upon western Indiana for this spectacle, Terre Haute will once again become the "Crossroads of America." Since 1963, the United States federal government has not carried out the ultimate punishment of a capital sentence.2 That will change
* Christopher Q. Cutler graduated cum laude from Utah State University with a bache- lor's degree in Sociology with a Law and Society emphasis in 1996 and graduated cum laude from J. Reuben Clark Law School at Brigham Young University in 1999. Mr. Cutler was admitted to the Utah State Bar in October 1999. He and his wife, Carrie, have one marvelously energetic son, William Royal. Mr. Cutler is currently a law clerk for United States Magistrate Judge Peter E. Ormsby in the Southern District of Texas. The opinions expressed in this article are that of the author and are not endorsed by the court. 1. CLARENCE DARROW, CRIME: ITS CAUSE AND TREATMENT 166 (1922). 2. In 1963 Victor Feguer was hanged at the Iowa State Penitentiary for the kidnapping and murder of a doctor. Craig J. Albert, Challenging Deterrence: New Insights on CapitalPunishment
1189 1190 Seattle University Law Review [Vol. 23:1189 with Garza's execution. Recently, Terre Haute became home to the new federal death chamber and the twenty-one men who sit on the newly-constructed death row.3 Juan Raul Garza, a resident of the new federal death row for drug-related homicides since the early 1990s, has exhausted judicial review of his death sentence4 and likely will be exe- cuted within the next few months. The procedure to be employed in the upcoming federal execution is well-established. After spending the forty-eight to seventy-two hours prior to the execution in a holding cell, the condemned is led to the execution room by corrections officers and strapped to a gurney with arms outstretched.' An I.V. is inserted into the arm, and an anesthetic and potassium chloride enter the blood stream, stopping the heart. And so, the condemned experiences what death-row denizens call "the ultimate high."7
Derived from Panel Data, 60 U. PITT. L. REV. 321, 323 n.5 (1999). 3. As of January 3, 2000, these men are: (1) David Ronald Chandler (sentenced in 1991 for hiring someone to murder a police informant his sentencing has recently been overturned by the Eleventh Circuit, but will be reheard en banc); (2) Cory Johnson (sentenced in 1993 for several murders); (3) James H. Roane (co-defendant of Johnson); (4) Richard Tipton (co-defend- ant of Johnson); (5) Juan Raul Garza (sentenced in 1993); (6) John McCullah (sentenced in 1993 for a drug-related homicide); (7) Orlando Hall (sentenced in 1995 for the kidnapping, rape, and murder of a girl); (8) Bruce Webster (same); (9) Louis Jones (sentenced in 1995 for the kidnap- ping, rape, and murder of a female soldier); (10) Len Davis (sentenced in 1996 for killing a woman who had filed a complaint against him); (11) Paul Hardy (Davis' accomplice); (12) Bountaem Chanthadara (sentenced in 1996 for a murder during a robbery); (13) Anthony Battle (sentenced in 1997 for killing a corrections officer while serving a prison sentence); (14) Timothy McVeigh (sentenced in 1997 for the murder of federal agents in the bombing of a federal build- ing); (15) Darryl Alamount Johnson (sentenced in 1997 for a double murder); (16) Aquilla Bar- nette (sentenced in 1998 for murdering his former girlfriend and another in a carjacking); (17) Billie Jerome Allen (sentenced in 1998 for a murder during a bank robbery); (18) Norris Holder (sentenced in 1998 for a murder during a bank robbery); (19) David Paul Hammer (sentenced in 1998 for killing a federal prison inmate); (20) Richard Thomas Stitt (sentenced in 1998 for order- ing the murder of three people); and (21) Danny Lee (convicted in 1999 for the murder of a gun dealer and his family). See The Penalty Is Death: McVeigh Accepts His Punishment Stoically, FLORIDA TODAY, June 14, 1997, at llA; Federal Inmates, THE DAILY OKLAHOMAN, July 14, 1999, at 4. See also The Death Penalty Information Center
This procedure, performed hundreds of times in the independent "laboratories of the states, '8 will most likely be performed smoothly. However, while the procedure itself may be performed without a hitch, the emotions, concerns, and debates regarding execution will probably be tumultuous. While the nation is accustomed to the rou- tine state executions and their accompanying vehement protests, the nation at large is unaccustomed to a sanctioned killing by the United States government. The imminent use of the death penalty by the federal government is sure to fuel the debate that has raged with increasing furor, escalating with every execution. This Comment analyzes the federal death penalty. Part one dis- cusses the history of the federal death penalty, from its roots in the superstitions and religious dogma of colonial America to the Drug Kingpin Act9 and the Federal Death Penalty Act of 1994.10 Part two examines the Drug Kingpin Act, the first federal move into the death penalty arena since the landmark Supreme Court case of Furman v. Georgia." Next, the Comment explores Congress' broad expansion of the federal death penalty in its most recent statute, the Federal Death Penalty Act of 1994. Part four examines the practical application of the Drug Kingpin Act in the case of Juan Raul Garza, the man who likely will be the first federal execution of the twenty-first century. Part four also contemplates the constitutionality of the federal death penalty, focusing on the recent Supreme Court case of Jones v. United States,1 2 the first treatment of the new death penalty law by this nation's highest court. Finally, part five considers the implications, pragmatic and political, of renewed federal executions.
8. This expression of federalism was originally expressed by Justice Brandeis in his dissent in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932): It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. . . novelty itself is not a vice. These novel experiments, of course, must comply with the United States Constitu- tion; but their mere novelty should not be a strike against them. 9. 21 U.S.C. § 848 (1994). 10. 18 U.S.C. § 3591 (1994). 11. 408 U.S. 238 (1972). 12. 119 S. Ct. 2090 (1999). 1192 Seattle University Law Review [Vol. 23:1189
I. A HISTORY OF FEDERAL EXECUTIONS IN AMERICAN CAPITAL JURISPRUDENCE
A. The FederalDeath Penalty Until 1972
Hail hieroglyphic State machine, Contrived to punish fancy in." To understand current death penalty provisions, it is helpful to examine the history of capital punishment under English common law and subsequent statutory developments in this country. English com- mon law, from which American law originally derived, long employed capital punishment. Reflecting Biblical language, early English law provided: Let the man who slayeth another wilfully perish by death. Let him who slayeth another of necessity or unwillingly, or unwil- fully, as God may have sent him into his hands and for whom he has not lain in wait be worthy of his life and of lawful bot if he seek an asylum.14 In the 1500s England recognized eight crimes meriting capital punishment: "treason, petty treason (killing of husband by his wife), murder, larceny, robbery, burglary, rape, and arson."'" This list grew over the centuries until "[b]y shortly after 1800, capital offenses num- bered more than 200 and not only included crimes against person and 1 6 property, but even some against the public peace." 1 This deluge of death may seem appalling in light of our current death penalty juris- prudence, but, as Blackstone noted, England was fairly civilized when compared with the rest of Europe." Capital punishment has been an inherent component of the American legal experience since the origin of this nation. In 1622 the first colonial execution took place in Virginia for theft.' In the early seventeenth century, the colonies prescribed execution for a laundry
13. DANIEL DEFOE, HYMN TO THE PILLARY. 14. 3 J. STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 24 (1883). The lan- guage from this statute echoes Exodus 21:12-13. Id. 15. Furman v. Georgia, 408 U.S. 238, 334 (1972) (Marshall, J., concurring). 16. Id. 17. See id. (citing 4 WILLIAM BLACKSTONE, COMMENTARIES). Common law executions hardly seem so barbaric when compared to capital punishment in modern China. China leads the world by far in executions, where most executions are performed with a single bullet to the back of the head. See Mark Curriden, Inmates' Last Wish Is to Donate Kidney, 82 A.B.A. J. 26 (1996). Traditionally, the family of the executed is responsible for reimbursing the People's Republic of China for the cost of the bullet used to kill their loved one. See Allison K. Owen, Death Row Inmates or Organ Donors: China's Source of Body Organsfor Medical Transplantation, 5 IND. INT'L & COMP. L. REv. 495, 502 (1995). 18. EDWARD TIVNAN, THE MORAL IMAGINATION 145 (1995). 20001 Federal Death Penalty 1193 list of crimes including: murder, witchcraft, idolatry, assault in sud- den anger, rape, buggery, adultery, sodomy, perjury in a criminal trial, rebellion, manstealing, and statutory rape. 9 The colonial crimes that formed the basis for capital punishment collectively evolved from those based on theocratic principles to more secular principles.2 ° As constructed by the framers of the Constitution, no explicit mention of the death penalty can be found within the four corners of the original document. But the guarantee of the Fifth Amendment against the improper deprivation of "life" without the due process of law in the Bill of Rights suggests an awareness by early American leaders that the death penalty would be implemented by the federal government.2 Moreover, the Fifth Amendment also implements the use of grand juries in capital prosecutions.2 Some opposition to the death penalty did exist in the colonies prior to the creation of the nation.23 This, however, amounted to little more than an effort to reform the use of capital punishment, rather than a total abolition. In 1790, the first Congress attempted to craft a federal criminal code and on April 30, 1790, passed an "Act of the Punishment of Cer- tain Crimes Against the United States. '24 The act sanctioned the use of capital punishment for several crimes, mandating that anyone com- mitting treason, willful murder on federal property, forgery, piracy, counterfeiting, and any one of several crimes on the high seas "shall suffer death."2" For the next century, this law remained rather static. In 1829 the House of Representatives called for a presidential account-
19. See John P. Cunningham, Death in the Federal Courts: Expectations and Realities of the Federal Death Penalty Act of 1994, 32 U. RICH. L. REV. 939, 942 (1998) (citing Furman, 408 U.S. at 335 (Marshall, J., concurring)). Indeed, the imposition of capital punishment for these crimes was based on the proscriptions of the Old Testament, and "The Capital Lawes of New- England" referenced the section of the Bible that condemned the enumerated practice or crime. See Furman, 408 U.S. at 335. 20. See Furman, 408 U.S. at 335 (Marshall, J., concurring). 21. See U.S. CONST. amend. V. 22. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." Id. 23. "Even in the 17th century, there was some opposition to capital punishment in some of the colonies. In his 'Great Act' of 1682, William Penn prescribed death only for premeditated murder and treason, although his reform was not long lived." Furman, 408 U.S. at 336 (Mar- shall, J., concurring). Also "in 1794, Pennsylvania attempted to reduce the rigors of the law by abolishing capital punishment except for 'murder of the first degree,' defined to include all 'will- ful, deliberate and premeditated' killings, for which the death penalty remained mandatory." McGautha v. California, 402 U.S. 183, 198 (1971) (citing Pa. Laws 1794, c. 1777). 24. For a more complete discussion of the 1790 act, see Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 FORDHAM URB. L.J. 347, 363 (1999). 25. See id. See also 1 Stat. 112, sec. 1, 3, 8 (1790); 1 Stat. 115, sec. 14; 1 Stat. 117 sec. 23 (1790). 1194 Seattle University Law Review [Vol. 23:1189 ing of federal executions. 26 President Andrew Jackson reported that since 1790 there had been one hundred thirty-eight capital trials, with one hundred eighteen convictions. 27 Of these convictions, there had been forty-two executions and sixty-four pardons.28 Surprisingly, six individuals who had been sentenced to death under the federal statute were unaccounted for.29 The 1800s was a time of social change, and a loud call for the abolition of the death penalty arose in certain circles. While there was some movement earlier in the century to ban the use of capital pun- ishment,3" the work of Edward Livingston, an attorney who became Secretary of State and Minister to France under President Jackson, became the chief proponent of the abolition movement during that time. Livingston provided credibility to the abolition movement, which previously may have been considered a radical cause. Throughout the Northeast, states began to use the death penalty less frequently and in more limited circumstances, until Michigan became the first state to abolish capital punishment in 1846. Soon other states curtailed the use of the death penalty. 31 Even those states that contin- penalty narrowed the crimes that merited ued to employ the 32death capital punishment. The Civil War, however, seemed to derail the abolition attempts and thwarted any momentum to restrict or abolish the death penalty. One historian noted that "[a]fter the Civil War, men's finer sensibili- ties, which had once been revolted by the execution of a fellow being, seemed hardened and blunted. ' ' 33 Following the Civil War, some abo- litionist successes were achieved, 34 but social pressure that had driven change during the first part of the century was generally diminished.
26. See Little, supra note 24, at 366. 27. Id. at 363; H.R. EXEC. No. 20-146 (1829). 28. H.R. EXEC. No. 20-146 (1829). 29. Id. at n.87. 30. For example, several governors of New York strongly urged their state legislature to revoke the use of capital punishment. See Furman v. Georgia, 408 U.S. 238, 337 (1972) (noting that "in the early 1800's, Governors George and DeWitt Clinton and Daniel Tompkins unsuc- cessfully urged the New York Legislature to modify or end capital punishment."). 31. Specifically, Rhode Island partially abolished capital punishment in 1852 and Wiscon- sin totally abolished the death penalty in 1853. See Furman, 408 U.S. at 338 (Marshall, J., concurring). 32. HUGO ADAM BEDAU, THE DEATH PENALTY IN AMERICA 10 (1967). 33. David Brion Davis, The Movement to Abolish Capital Punishment in America, 1787- 1861, 63 AM. HIST. REV. 23, 33 (1957) (as quoted in Furman, 408 U.S. at 338-39). 34. "Maine abolished the death penalty in 1876, restored it in 1883, and abolished it again in 1887; Iowa abolished capital punishment from 1872-1878; Colorado began an erratic period of de facto abolition and revival in 1872; and Kansas also abolished it in 1872, and by law in 1907." Furman, 408 U.S. at 339 (Marshall, J., concurring). During this time period there also was a retreat from the use of a mandatory death penalty scheme and an increase in the use of jury nulli- 2000] FederalDeath Penalty 1195
Opposition to the death penalty revived toward the end of the century, and in 1892 the move for abolition finally reached the federal legislature, when a bill was introduced that called for the revocation of capital punishment.3" While ultimately unsuccessful, this bill provid- ed a basis for serious discussion on the federal level concerning aboli- tion and led to the first reduction of the federal death penalty in 1897.36 The "Act to Reduce the Cases in Which the Death Penalty May Be Inflicted" reduced the number of potential capital offenses to five.37 One of the more important modifications in 1897 was the change from a mandatory to a permissive death penalty, allowing the jury to decide the propriety of the death penalty. However, these efforts had little impact on the death penalty as a whole. Indeed, this amounted to little more than "a slight and fluctuating trend to abolish it."38 After a revival of abolitionist support, the period following the First World War again saw public support dissipated. This period marked the progression of four separate trends: (1) a tendency to abolish, then reinstate the death penalty; 9 (2) a tendency toward a permissive death penalty scheme in place of a mandatory one;4" (3) a reduction in the number of precursor capital crimes; and (4) a reduc- tion in the total number of executions. 41 The federal death penalty during this time also was slightly broadened in scope beyond the five offenses enumerated in 1897.42 In the 1960s a renewed abolition movement began, spearheaded by the NAACP Legal Defense and Educational Fund. 3 The Legal Defense Fund, largely through the efforts of Professor Anthony Amsterdam, attempted to block executions through a "moratorium fication to prohibit the use of the death penalty in inappropriate circumstances. Id. See also McGautha v. California, 402 U.S. 183, 199 (1971) (stating that "jurors on occasion took the law into their own hands in cases which were 'willful, deliberate, and premeditated' in any view of that phrase, but which nevertheless were clearly inappropriate for the death penalty. In such cases they simply refused to convict of the capital offense."). 35. Furman, 408 U.S. at 339 (Marshall, J.,concurring). 36. Little, supra note 24, at 367. 37. Id. 38. See EDWIN H. SUTHERLAND, PRINCIPLES OF CRIMINOLOGY 561 (4th ed. 1939). 39. By 1917 twelve states had abandoned the death penalty, but four of these reinstated capital punishment during World War One and others later. See Furman, 408 U.S. at 339 (Mar- shall, J., concurring). 40. This trend began in the 1800s, and by the early 1900s almost every jurisdiction had cast aside the mandatory capital sentencing scheme. See Furman, 408 U.S. at 339 (Marshall, J., con- curring). 41. See SUTHERLAND, supra note 38, at 561. 42. See Little, supra note 24, at 374. 43. See WILLIAM B. LOCKHART ET AL., CONSTITUTIONAL RIGHTS AND LIBERTIES 301 (7th ed. 1991). 1196 Seattle University Law Review [Vol. 23:1189 strategy" to create a "death row logjam."" A slowdown in the execu- tion machine also helped the abolition movement. While the number of executions nationwide had peaked in the 1930s, by the 1960s the gradual decline resulted in a virtual standstill.4" Several states during this period discontinued the use of the death penalty. The abolition effort proved so successful that between 1967 and 1972 there was not one execution in the United States, either on the state or federal level.46 Although the number of executions in the United States had been steadily decreasing since the first part of the twentieth century,4 7 the unparalleled quiet in the execution chamber spoke loudly of the dis- content in society. From 1927 to 1963 there were thirty-four federal executions.48 While many of these executions were for murder, several individuals were executed for sabotage, espionage, and kidnapping.49 The method used to execute these individuals varied between hanging, electrocu- tion, and the gas chamber.5" The final execution by the federal gov- ernment in the twentieth century occurred in Iowa on March 15, 1963, as Victor Feguer was hanged for kidnapping and murder."1
B. The Modern FederalDeath Penalty-1972 to Present
Capital Punishment, a penalty regardingthe justice and expediency of which many worthy persons-includingall the assassins--enter- tain grave misgivings.12 Modern death penalty jurisprudence began in 1972 with the breakthrough Supreme Court case of Furman v. Georgia.3 While the
44. Id. 45. In 1930 there were 155 executions. In 1935 this number had increased to 199. 1940 saw a small decline to 160. In 1945 the number continued to decline to 120, but remained nearly steady in 1950 with 119 executions. By 1955 the number dropped to 81, and dropped to nearly half that in 1960 to 49. 1965 represented a substantial drop to 15 executions, and by 1970 there were no executions. See United States Department of Justice, Bureau of Justice Statistics Bulle- tin, CapitalPunishment 1998 (accessible at http://www.ojp.usdoj.gov/bjs/abstract/cp98) (visited 12/15/99). 46. See id. 47. See DAVID C. BALDUS, GEORGE WOODWORTH, & CHARLES A. PULASKI, JR., EQUAL JUSTICE AND THE DEATH PENALTY 9 (1990) (quoted in LOCKHART ET AL., supra note 43, at 301). 48. See Death Penalty Information Center, supra note 3. 49. Id. 50. Id. 51. On Feb 15, 1963, Feguer was hanged for the kidnapping and murder of a doctor. His execution, however, received little media attention, especially in comparison to the media on- slaught that Garza's execution will bring. For a more comprehensive treatment of Feguer's execution, see Little, supra note 24, at 355-58. 52. AMBROSE BIERCE, THE DEVIL'S DICTIONARY 14 (1911). 2000] Federal Death Penalty 1197
Supreme Court had previously considered challenges to the death pen- alty under the Eighth Amendment's prohibition of cruel and unusual punishments, before this case it had never considered a facial chal- lenge to the death penalty as unconstitutional per se.5 4 Earlier cases, such as Witherspoon v. Illinois,"5 in which the court ruled that a "death-qualified jury" was unconstitutional, indicated that the death penalty would soon face drastic review by the Supreme Court. The Furman Court, however, forever changed the face of death penalty jurisprudence.5 6 Furman challenged the use of the death penalty as being arbi- trary, capricious, and discriminatory in its application. Furman chal- lenged state statutes that allowed the decision of life or death to be made by a jury with almost no guidance. In Furman, a decision marked by a separate opinion for every member of the Supreme Court, the Court failed to find that every application of the death penalty would be unconstitutional, but cast enough doubt over the process to create a four-year hiatus in death penalty jurisprudence. Furman called into question the process by which the death penalty was imple- mented, and states subsequently revised their statutes to conform with Eighth Amendment expectations,5 7 bringing the national execution machine to a halt. 58 However, this respite from the death penalty was short-lived, and the death penalty reemerged in the seminal case of Gregg v. Georgia.59 In Gregg, the Court unequivocally held that not all capital pun- ishment violates the constitution.6" Most importantly, Gregg estab-
53. 408 U.S. 238 (1972). 54. Some members of the court had previously suggested that they may consider the use of this death penalty as violation of the prohibition against cruel and unusual punishment. See Rudolph v. Alabama, 375 U.S. 889, 889 (1963) (Goldberg, J., dissenting). 55. 391 U.S. 510 (1968). Another case from that period, however, bolstered capital punish- ment in holding that leaving the decision of life and death to a jury offended nothing in the con- stitution. See McGautha v. California, 402 U.S. 183 (1971). Indeed, any attempt to divine the course of Supreme Court jurisprudence according to the cases decided during that time period was unreliable speculation. 56. Furman v. Georgia, 408 U.S. 238 (1972). 57. Of the nine Justices, only Brennan and Marshall opined that the death penalty would be unconstitutional in all applications. 58. While the great majority of jurisdictions had a death penalty at the time of Furman, the number of executions per year had been slowly decreasing. In the time period between 1900 and 1966, nationwide in the federal and state systems there were 7,126 executions. See RICHARD QUINNEY, THE SOCIAL REALITY OF CRIME 185 (1970). "But since 1930, when statistics began to be systematically compiled, executions have declined from an annual average of 167 during the 1930's to an annual average of 27 during the first seven years of the 1960's." Id. at 185-86. Since Gregg, however, the number of executions has greatly surpassed the slowing period of the Sixties. Id. 59. 428 U.S. 153 (1976). 60. Id. at 169. 1198 Seattle University Law Review [Vol. 23:1189
lished the standards that govern the application of the death penalty. Gregg mandated that "[n]o longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines."61 The Court held that the Eighth Amendment required "an assessment of contemporary values concerning the infliction" of the death penalty." This objective test would involve the discernment of "the evolving standards of decency that mark the progress of a maturing society."63 The Court identified the actions of state legisla- tures and the decisions of juries as two important subcomponents of this evaluation when imposing the death penalty. Having assessed the moral barometer of the public, a court in such cases must then decide if the punishment "comports with the basic concept of human dignity at the core of the [Eighth] Amendment."64 Gregg was well-received both in the political and public arena. At the time of Furman, fifty-seven percent of Americans favored the death penalty.6" By the time Gregg was decided, this number had risen to sixty-five percent.66 The judicial reasoning in Gregg soon was followed nationwide. In 1979 Gary Gilmore was executed in Utah for the murder of a gas station attendant and motel clerk.67 Since then, all but thirteen juris- dictions have adopted the death penalty.68 The executions that have ensued represent a steady use of the death penalty in our nation's history.69 Indeed, in 1999 there were
61. Id. at 206-07. 62. Id. at 173. 63. Id. (quoting Trop v. Dulles, 356 U.S. 86, 101 (1956)). 64. Id. at 182. 65. See LOCKHART, supra note 43, at 313. 66. See id. 67. Utah is one of the few states that employs the firing squad for executions. Only Utah, Idaho, and Oklahoma continue to allow this form of execution. See IDAHO CODE § 19-2716 (1999); OKLA. STAT. tit. 22 § 1014 (1999); UTAH CODE ANN. § 77-18-5.5 (1999). Oklahoma will only use the firing squad if the other forms of execution are ruled unconstitutional. OKLA. STAT. tit. 22 § 1044 (1999). Utah specifically has used the firing squad for a century and a half, since its territorial legislature in 1851 mandated that "(b]e it further ordained, that when a person shall be found guilty of murder, under any of the preceding sections of this ordinance, and sented [sic] to die, he, she, or they shall suffer death by being shot, hung, or beheaded." CRIMINAL LAWS OF THE STATE OF DESERET, Sec. 10. The Supreme Court expressly held this manner of execution constitutional in 1879 in Wilkerson v. Utah, 99 U.S. 130 (1879) (ruling in the first challenge to the death penalty under the Eighth Amendment that the firing squad did not amount to a punishment involving torture, and consequently, was not cruel and unusual). 68. Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin, and the District of Colombia do not employ the death penalty. 69. Since Gilmore's execution there have been 598 executions by the states. These execu- tions escalated gradually, with only eleven individuals being executed by 1983. In 1984 there were 21 executions, with the number of executions hovering at this level for several years. In 20001 Federal Death Penalty 1199 ninety-eight executions in the states.7° This use, however, is less extensive than death penalty implementation in earlier times. The Supreme Court in Trop v. Dulles7' discussed the changing nature of Eighth Amendment jurisprudence, commenting on the "evolving standards of decency that mark the progress of a maturing society "72 that affect the manner in which we employ the death penalty. In keeping with this, the states have subsequently tempered and refined death penalty jurisprudence through constitutional review. This renewed fervor over the death penalty was not replicated on the national level contemporaneously with the states. After Gregg, from 1976 to 1988, the federal government enacted no new death pen- 7 alty legislation. ' During that period, some bills were introduced74 to reactivate the federal death penalty, but they did not pass. One of the unanticipated effects of a federal death penalty statute is an actual hindrance in the administration of justice. A study by the President's Crime Commission during the Furman-mandated reprieve in executions noted that Whatever views one may have about the efficacy of the death penalty as a deterrent, it clearly has an undesirable effect on the administration of justice. The trial of a capital case is a stirring drama, but that is perhaps its most dangerous attribute. Select- ing a jury often requires several days; each objection or point of law requires excessive deliberation because of the irreversible consequences of error. The jury's concern with the death pen-
1992 there were 31 executions. In 1995 there was a dramatic leap to 56 executions, and the number has steadily increased since. 70. This number is up significantly from the 68 executions in 1998 and 74 in 1997. Id. 71. 356 U.S. 86 (1958). 72. Gregg v. Georgia, 428 U.S. 153, 173 (1976) (quoting Trop, 356 U.S. at 101). 73. One commentator has noted that, to some extent, [t]his slow response was attributable.., to the Democratic Party's control of both houses of Congress as well as the Presidency from 1976-80. The Democratic Party traditionally expressed greater opposition to the death penalty than the Republican Party. However, pro-death penalty political strength began to grow from 1980 to 1992 under the strong Republican leadership of Ronald Reagan and George Bush. Charles C. Boettcher, Testing the Federal Death Penalty Act of 1994, 18 U.S.C. §§ 3591-98 (1994): United States v. Jones, 132 F.3d 232 (5th Cir. 1998), 29 TEX. TECH. L. REV. 1043, 1053-54 (1998). 74. While 18 U.S.C. § 1512 was amended in 1986 to include the penalty of death for killing a witness, the section did not comport with the requirements of Furman and was regarded as being of no significance. See Little, supra note 24, at 380. In 1977-1978, 1979-1980, and 1981 death penalty bills were introduced in Congress, but were ultimately unsuccessful. See Peggy M. Tobolowsky, Drugs and Death: Congress Authorizes the Death Penalty for Certain Drug-Related Murders, 18 J. CONTEMP. L. 47, 49 (1992). In 1984 the Senate passed federal death penalty legislation that was ignored by the House. Id. The House later reciprocated with a death penalty provision in the Omnibus Anti-Drug Act of 1986, but the Senate version did not include that provision. Id. at 59. 1200 Seattle University Law Review [Vol. 23:1189
alty may result in unwarranted acquittals and there is increased danger that public sympathy will be aroused for the defendant, regardless of his guilt of the crime charged. 5 This procedural morass has reduced the likelihood that execu- tions today will ever surpass the level of executions held during the 1930s. Some commentators have felt that the federal hiatus was at least partially due to frequent allegations of racial and socioeconomic dis- parities in the use of the death penalty.76 These concerns, however, were alleviated in 1987 when a majority of the Supreme Court upheld a trial court's denial of the use of statistical evidence to establish a claim of cruel and unusual punishment in McCleskey v. Kemp. Finally, with the stabilizing effect of over a decade of Supreme Court jurisprudence that defined the contours of the Eighth Amendment, and with public support for the death penalty at an all-time high, the federal legislature in 1988 enacted the "Drug Kingpin Act."
II. THE DRUG KINGPIN ACT
[I]s there something else you should do, perhaps something you should do before anything else? Of course there is. You need to get sharks out of the water. Drive them out, surround them, net them, spear them-you do whatever it takes, but you get rid of them.7 9 By 1988, the phrase "the War on Drugs" had become an often repeated phrase in American vernacular.8" Seeking to alleviate the social ills accompanying the torrent of illegal narcotics entering this country, Congress made great efforts to curtail drug importations. One of the most visible results of this effort is the "Drug Kingpin Act," codified as 21 U.S.C. § 848, creating a federal death penalty for
75. NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS, COURTS (1973). 76. See Little, supra note 24, at 378-79. 77. 481 U.S. 279 (1987). 78. In 1986 public support for the death penalty ranged from 70 to 75 percent. See WIL- LIAM B. LOCKHART ET AL., CONSTITUTIONAL RIGHTS AND LIBERTIES 313 (7th Ed. 1991). 79. WILLIAM J. BENNETT, THE DE-VALUING OF AMERICA 141 (1992). Bennett served as the "Drug Czar" under President George Bush. 80. The term "war on drugs" came into the national spotlight in a 1982 radio address by President Ronald Reagan where he stated: The mood toward drugs is changing in this country, and the momentum is with us. We're making no excuses for drugs-hard, soft, or otherwise. Drugs are bad, and we're going after them. As I've said before, we've taken down the surrender flag and run up the battle flag. And we're going to win the war on drugs. As quoted in Edward McGlynn Gaffney, Jr., Foreword to Juvenile Crime: Policy Proposals on Guns & Violence, Gangs & Drugs, 31 VAL. U. L. REV. Xvii, xx n.5 (1997). 2000] Federal Death Penalty 1201 certain crimes associated with the drug trade. While the legislative history for the Drug Kingpin Act is minimal,8' the use of the Drug Kingpin Act to curtail drug dealers was a natural progression of the war on drugs and a predictable response to the nation's overwhelming support for the death penalty.82 The Drug Kingpin Act was created in a whirlwind of political fury. One commentator noted that Congress's haste was evidenced most obviously in the fact that it neglected to include ... anything at all about the actual time, place, method, and manner for carrying out federal death sen- tences. That election-year Congress's interest in the death pen- alty was purely and transparently symbolic, almost aesthetically so, and not remotely practical.83 After hasty creation, on November 18, 1988, the Drug Kingpin Act became effective.84 21 U.S.C. § 848 implements the death penalty as a sentencing alternative for several crimes. First, 21 U.S.C. § 848 bases its imposi- tion of the death penalty on those homicides committed during the commission of a "continuing criminal enterprise. " Specifically, the phrase "continuing criminal enterprise" focuses on any person who violates the drug control or enforcement laws involving importation and exportation of drugs.86 This violation must be committed by an
81. See Little, supra note 24, at 383. 82. In 1986 approximately seventy percent of the American population supported the use of the death penalty for murder. See American Survey: Capital Punishment, THE ECONOMIST, Mar. 19, 1988, at 23 (as quoted in Sandra R. Acosta, Imposing the Death Penalty Upon Drug Kingpins, 27 HARV. J. ON LEGIS. 596, 597 n.7 (1990)). 83. George Kannar, FederalizingDeath, 44 BUFF. L. REV. 325, 326. Another commentator has termed the speedy resolution of the bill as the result of "the frenzy of the final hours before an election-year adjournment .... Peggy M. Tobolowsky, Drugs and Death: Congress Authorizes the Death Penalty for Certain Drug-Related Murders, 18 J. CONTEMP. L. 47, 56 (1992). 84. See David J. Novak, Anatomy of a Federal Death Penalty Prosecution: A Primer for Prosecutors, 50 S.C. L. REV. 645 (1999). This is not to say there was no opposition to the death penalty provisions. One senator noted that [O]nce again we are going for an election year slam dunk on drugs. Unfortunately, our goal seems to be more to score points with the voters than to address the phenom- enally difficult drug problem in this country and to do it in a responsible way. We are taking precipitous steps to indulge our own political vanity while treading with impunity on civil liberties cherished by all Americans. ... [W]e will score our election year slam dunk I fear to the cheers of the crowd, but it will not even slow down the drug problem of this Nation. 134 CONG. REC. S7477, S7479 (daily ed. June 9, 1988) (statement of Sen. Evans). 85. 21 U.S.C. § 848(e)(1)(A) (1994). 86. As an essential part of the prosecution under this portion of the Drug Kingpin Act, the government must not only show that the killing was intentional, they must also demonstrate that the killing had been related in some meaningful way to the continuing criminal enterprise. See 1202 Seattle University Law Review [Vol. 23:1189 individual "in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management."87 To constitute a continuing criminal enterprise, the offender must also obtain substan- tial income or resources from the criminal activities.88 To qualify for the death penalty, the individual engaging in the continuing criminal enterprise must be one who "intentionally kills or counsels, com- mands, induces, procures, or causes the intentional killing of an indi- vidual."89 Secondly, the Drug Kingpin Act institutes the death penalty for anyone who intentionally "kills or counsels, commands, induces, pro- cures, or causes the intentional killing of an individual and such killing results"9 while importing a controlled substance, possessing a con- trolled substance on a vessel, aircraft, or vehicle, or manufacturing or possessing with the intent to distribute.91 This section specifically focuses on murders accomplished by those who "manufacture, distrib- ute, or dispense, or possess with intent to manufacture, distribute, or dispense" a controlled substance.92 Finally, the Drug Kingpin Act provides for the death penalty for those who kill "during the commission of, in furtherance of, or while attempting to avoid apprehension, prosecution, or service of a prison sentence for" a felony involving drug control or enforcement and the import and export of drugs.93 For this part of the act to apply, the individual must either kill or order the killing of a federal, state, or local law enforcement officer engaged in his or her duties.94 The definition of law enforcement officer broadly encompasses "those engaged in corrections, probation, or parole functions."95 Under the Drug Kingpin Act, if the government intends to seek the death penalty, before trial or the acceptance of a guilty plea by the
United States v. Walker, 912 F. Supp. 646, 652 (N.D.N.Y. 1996), affd, 142 F.3d 103 (2d Cir. 1998). This, however, does not mean that only the "kingpin" himself may be prosecuted under this section. Courts have interpreted the "working in furtherance of a continuing criminal enter- prise" language as referring to "working to promote or advance the interests" of the enterprise. See United States v. Cooper, 19 F.3d 1154, 1165 (7th Cir. 1994). Thus, the murder of an individual involved in the laundering of the proceeds of a drug organization for being an inform- ant by a member of that organization was properly brought under this section. Id. 87. 21 U.S.C. § 848(c)(2)(A) (1994). 88. 21 U.S.C. § 848(c)(2)(B) (1994). 89. 21 U.S.C. § 848(1)(A) (1994). 90. Id. 91. 21 U.S.C. § 960(b)(1) (1994). 92. 21 U.S.C. § 841(a) (1994); 21 U.S.C. § 841(b)(1)(A) (1994). 93. 21 U.S.C. § 848(e)(1)(A) (1994). 94. 21 U.S.C. § 848(e)(1)(B) (1994). 95. 21 U.S.C. § 848(e)(2) (1994). 2000] Federal Death Penalty 1203 court, the government must serve a notice on the defendant that it intends to seek the death penalty if a conviction results.96 In this notice, the government must set forth the aggravated factors that the government plans to emphasize in seeking the death penalty." The notice must be given within a reasonable time before trial.98 This notice, however, may be amended upon a showing of good cause.99 Furthermore, the Drug Kingpin Act mandates a bifurcated trial. After the government has provided notice of the intent to seek the death penalty, and the defendant is found culpable in the guilt phase of the trial, a separate hearing is held to determine which punishment should be imposed) °° If the defendant has been found guilty after a jury trial, the same jury will sit in the penalty phase."0 Under certain circumstances, such as in the case of a guilty plea, the discharge of the jury, or court-ordered redetermination of sentencing, a new jury will be impaneled.' 2 Generally, the sentencing jury will consist of twelve members."0 3 However, if the defendant so requests, and the govern- ment agrees, the sentencing proceeding may be held before a judge rather than a jury."' Before the sentencing hearing, no presentencing report is cre- ated.' In the sentencing hearing, aggravating factors are presented to the jury for their consideration in determining the applicability of the death penalty. As a preliminary matter, the sentencing jury must find the aggravating factor of "mens rea" before proceeding to find other aggravating factors that would support the imposition of the death penalty. 6 The jury must first consider whether the defendant inten- tionally killed the victim, inflicted bodily harm that resulted in death, engaged in conduct intending that the victim be killed, or engaged in conduct intending to cause grave risk to a person, and the victim was
96. 21 U.S.C. § 848(g),(h) (1994). Before the notice of intent is filed, government protocol requires the Department of Justice to get written authorization from the Attorney General to proceed with the capital prosecution. For a more comprehensive look at this process see David J. Novak, Anatomy of a Death Penalty Prosecution: A Primer for Prosecutors, 50 S.C. L. REV. 649- 53 (1999). 97. 21 U.S.C. § 848(h)(1)(B) (1994). 98. United States v. Pretlo, 770 F. Supp. 239, 241 (D. N.J. 1991). 99. 21 U.S.C. § 848(h)(2) (1994). Good cause, while undefined by the statute, focuses on the good faith of the government and any resultant prejudice to the defendant. See Pretlo, 770 F. Supp. at 242. 100. 21 U.S.C. § 848(l)(1) (1994). 101. 21 U.S.C. § 848(I)(1)(A) (1994). 102. 21 U.S.C. § 848(I)(1)(B) (1994). 103. 21 U.S.C. § 848(I)(2) (1994). 104. 21 U.S.C. § 848(I)(C) (1994). 105. 21 U.S.C. § 848(j) (1994). 106. Id. 1204 Seattle University Law Review [Vol. 23:1189 killed. °7 Once these "gateway" factors have been found, the jury then 08 considers if any other aggravating factors are present. The Drug Kingpin Act provides a long list of factors the jury may consider as aggravating. 9 This list, however, is by no means exhaustive; so long as the government provides notice, aggravating factors other than those enumerated in the statute may be considered by the jury."'
107. 21 U.S.C. § 848(n)(1) (1994). 108. These "gateway" factors are taken from the Supreme Court cases of Enmund v. Flori- da, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 137 (1987). In those cases, the Supreme Court held that the government may not execute a defendant who did not "himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Enmund, 458 U.S. at 797. See also United States v. Flores, 63 F.3d 1342, 1370 (5th Cir. 1995). The use of these factors as aggravators in the Drug Kingpin statute is interesting in that it seems to be the only death penalty scheme that uses the Enmund and Tison factors as aggravating circumstances. See id. 109. The statute provides the following aggravating factors: If the defendant is found guilty of or pleads guilty to an offense under subsection (e) of this section, the following aggravating factors are the only aggravating factors that shall be considered, unless notice of additional aggravating factors is provided under subsection (h)(1)(B) of this section: (1) The defendant- (A) intentionally killed the victim; (B) intentionally inflicted serious bodily injury which resulted in the death of the victim; (C) intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim, which resulted in the death of the victim; (D) intentionally engaged in conduct which- (i) the defendant knew would create a grave risk of death to a person, other than one of the participants in the offense; and (ii) resulted in the death of the victim. (2) The defendant has been con- victed of another Federal offense, or a State offense resulting in the death of a person, for which a sentence of life imprisonment or a sentence of death was authorized by statute. (3) The defendant has previously been convicted of two or more State or Fed- eral offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury upon another person. (4) The defendant has previously been convicted of two or more State or Federal offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the distribution of a controlled substance. (5) In the commission of the offense or in escaping apprehen- sion for a violation of subsection (e) of this section, the defendant knowingly created a grave risk of death to one or more persons in addition to the victims of the offense. (6) The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value. (7) The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecun- iary value. (8) The defendant committed the offense after substantial planning and premeditation. (9) The victim was particularly vulnerable due to old age, youth, or infirmity. (10) The defendant had previously been convicted of violating this sub- chapter or subchapter II of this chapter for which a sentence of five or more years may be imposed or had previously been convicted of engaging in a continuing criminal enterprise. (11) The violation of this subchapter in relation to which the conduct described in subsection (e) of this section occurred was a violation of section 859 of this title. (12) The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim. 21 U.S.C. § 848 (n) (1994). 110. See 21 U.S.C. § 848(j) (1994). Seealso United States v. McCullah, 76 F.3d 1087, 1107 2000] FederalDeath Penalty 1205
In considering the aggravating factors, however, the jury cannot base its imposition of a capital sentence on the finding of a single aggravating factor that duplicates an element of the underlying offense."' Instead, the statute intends to narrow the class2 of death- eligible defendants at both the guilt and penalty phases.1 The statute provides that the government will first present evi- dence in the sentencing hearing."3 The government bears the burden of proving the aggravating factors beyond a reasonable doubt." 4 The defense will have the opportunity to rebut any information presented at the hearing. After the government presents its case, the defense presents mitigating factors that militate against the imposition of a capital sentence." 5 The statute broadly provides for these factors, allowing for nearly all factors "in the defendant's background or char- acter [that] mitigate imposition of the death sentence.""' 6 The defense may also present factors relating to the crime for which the defendant has been found guilty.'
(10th Cir. 1996), cert. denied, 117 S. Ct. 1699 (1997). The allowance for nonstatutory aggravat- ing factors has been challenged on several different grounds, but has been consistently ruled constitutional. See United States v. Spivey, 958 F. Supp. 1523, 1531-33 (D. N.M. 1997) (chal- lenging under separation of powers); McCullah, 76 F.3d at 1106 (same); United States v. Pret- low, 779 F. Supp. 758, 765-68 (D. N.J. 1991) (challenging under the nondelegation doctrine); United States v. DesAnges, 921 F. Supp. 349, 354-55 (W.D. Va. 1996) (challenging under nondelegation doctrine and under ex post facto and bill of attainder prohibitions). 111. Pretlow, 779 F. Supp. at 772. 112. Seeid. 113. 21 U.S.C. § 848(0) (1994). 114. Id. 115. Id. 116. Id. These factors include: (1) The defendant's capacity to appreciate the wrongfulness of the defendant's con- duct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge. (2) The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge. (3) The defendant is punishable as a principal (as defined in section 2 of Title 18) in the offense, which was committed by another, but the defendant's participation was rela- tively minor, regardless of whether the participation was so minor as to constitute a defense to the charge. (4) The defendant could not reasonably have foreseen that the defendant's conduct in the course of the commission of murder, or other offense resulting in death for which the defendant was convicted, would cause, or would cre- ate a grave risk of causing, death to any person. (5) The defendant was youthful, al- though not under the age of 18. (6) The defendant did not have a significant prior criminal record. (7) The defendant committed the offense under severe mental or emotional disturbance. (8) Another defendant or defendants, equally culpable in the crime, will not be punished by death. (9) The victim consented to the criminal con- duct that resulted in the victim's death. (10) That other factors in the defendant's background or character mitigate against imposition of the death sentence. 21 U.S.C. § 848(m) (1994). 117. Pretlow, 779 F. Supp. at 776. 1206 Seattle University Law Review [Vol. 23:1189
The mitigating factors that are presented, as with the aggravating factors, may be excluded if the probative value is outweighed by the prejudicial value. " ' The burden of proving the mitigating factors rests upon the defense, and the factors must be established by a preponder- ance of the evidence.119 After the presentation of the mitigating evi- dence, the government has the opportunity for rebuttal.12° Having considered the factors presented, the fact finder returns special findings concerning the aggravating factors. 12' These findings must be unanimous. 22 A mitigating factor need not been approved unanimously, and a single juror may find a mitigating factor. 23 Hav- ing found the aggravating factors to exist, the fact finder must evaluate whether the aggravating factors sufficiently outweigh any mitigating factors, or, if no mitigating factors are shown, whether the aggravating factors themselves are sufficient to support the imposition of the death 2 penalty.1 1 If the hearing is conducted before a jury, the jury then penalty. To impose a death sen- votes on whether to impose the death12 tence, the vote must be unanimous. 1 Unlike some state laws, a unanimous jury vote under the Drug Kingpin Act does not leave the court with discretion to impose any other sentence. 126 The court must follow the jury's recommenda-
118. 21 U.S.C. § 848(6) (1994). 119. Id. 120. Id. 121. 21 U.S.C. § 848(k) (1994). 122. Id. The court, however, does not need to instruct the jury regarding the consequences of an inability to reach an unanimous verdict. See United States v. Chandler, 996 F.2d 1073, 1089 (11th Cir. 1993), cert. denied, 512 U.S. 1227 (1994). 123. 21 U.S.C. § 848(k) (1994). 124. Id. 125. Id. 126. Jones v. United States, 119 S. Ct. 2090, 2117 n.22 (1999) (Ginsburg, J., dissenting). Some states differ significantly from the federal scheme in this regard. In Idaho, Montana, Nebraska, and Arizona, the judge ultimately makes the life or death decision. Nevada provides that a three-judge panel will make the decision if a jury cannot. Four other states (Alabama, Delaware, Indiana, and Florida) employ a hybrid scheme where the jury and judge share involve- ment in the ultimate sentence. See Peyton Robinson, Judge Over Jury: Judicial Discretion in the Federal Death Penalty Under the Drug Kingpin Act, 45 U. KAN. L. REV. 1491, 1518 n.200 (1997). At least one commentator has found fault in this scheme: [T]he provision for an absolute jury determination of the life or death of a defendant under the Drug Kingpin Act assures inconsistent and unfair results. The similar jury provision under the Federal Death Penalty Act of 1994 suffers from the same funda- mental problem. The balancing of accuracy and uniformity in the hands of various and varied juries is doomed to end in the arbitrary and capricious results the Supreme Court determined to be unconstitutional in Furman. Boettcher, supra note 73, at 1080 n.335. 2000] FederalDeath Penalty 1207 tion.127 The jury is instructed that it is never required to impose a death sentence, but merely to recommend its imposition. The Drug Kingpin Act also precludes the death sentence from being imposed on anyone under the age of eighteen, anyone who is "mentally retarded," or anyone who suffers from a mental deficiency that would detract from the ability to understand the proceedings or8 appreciate the facts, which would make the death penalty unjust.1 Also, the Drug Kingpin Act provides for representation for "finan- 129 cially unable defendants.' The Drug Kingpin Act contains a provision regarding appeals from capital convictions. 3 The act requires an appellate court to affirm if the court determines that the death penalty was imposed without the influence of passion or prejudice and that the information supports the finding of the aggravating factors that predicated the sen- tence.1"3' Moreover, the section allows a reviewing court to reverse if passion, prejudice, or "any other factor," including legal error, is found.132 Courts have routinely found that this provision does not uncon- stitutionally curtail the appellate process.' If a court finds a sentence to be in contravention of these provisions, it must do so in a written opinion and then remand the case for reconsideration.'34 After exhausting all appeals, under the Drug Kingpin Act, the condemned will be executed by lethal injection.'35 A rather unique provision in the Drug Kingpin Act addresses the many concerns that have been raised about the racially disproportion- ate imposition of the death penalty. The "antidiscrimination provi- sion" provides that the jury will be instructed "that in its considera- tion of whether the sentence of death is justified it shall not consider
127. 21 U.S.C. § 848(k) (1999). 128. 21 U.S.C. § 848(1). 129. 21 U.S.C. § 848(q)(4)(A). 130. Interestingly, while the Drug Kingpin Act provides the standards for appellate review, it does not fashion an obligatory review of the death sentence. Of the 38 jurisdictions that sanction the death penalty, 36 provide a review of all death sentences, regardless of the defend- ant's wishes. 131. 21 U.S.C. § 848(q) (1994). 132. See United States v. DesAnges, 921 F. Supp. 349, 354 n.1 (W.D. Va. 1996). 133. See United States v. Bradley, 880 F. Supp. 271, 282 (M.D. Pa. 1994). 134. 21 U.S.C. § 848(q)(3) (1994). See also Bradley, 880 F. Supp. at 282-83. 135. See 28 C.F.R. § 26.3 (1997). An increasing number of jurisdictions employ lethal injection as the preferred method of execution. In 1987, 18 states authorized the use of lethal injection and by 1998, this number jumped to 34 states. See Capital Punishment 1998, supra note 48. Also, in 1987 28% of all executions were by lethal injection, but by 1997, this number had risen to 92%. Id. Of the 34 federal executions in the last century, 15 people died by electrocu- tion, 12 by hanging, and 7 by the gas chamber. See David A. Kaplan, Life and Death Decisions, NEWSWEEK, June 16, 1997, at 28. 1208 Seattle University Law Review [Vol. 23:1189 the race, color, religious beliefs, national origin, or sex of the defend- ant or the victim."' 36 The statute requires the jury to return a sentence of death only if it would return such a sentence regardless of the race, color, religious beliefs, national origin, or sex of the defendant or vic- tim.'37 Moreover, the statute requires that each juror sign a certificate stating that the individual juror did not take those factors into consid- eration in reaching a decision.13 This provision, however, does not prevent the defense from presenting potentially mitigating evidence on subjects referred to in that section.1 39 Overall, the "antidiscrimination provision" seems to be a reaction to the Supreme Court decision in McClesky v. Kemp. 4° The "antidiscrimination provision," while not removing all potential bigotry in death penalty jurisprudence, seems to dispel pre-McClesky discrimination arguments against the death pen- alty, at least in the federal context. 4' While a powerful tool for prosecutors, the Drug Kingpin Act has not been a substantial source of death row candidates. 42 To date, only five of the individuals sitting on federal death row have been convicted under the Drug Kingpin Act. 143 In comparison the Federal Death Penalty Act of 1994 has been not only a broader legislative attempt to federalize the death penalty, but also has been the source of a substan- tially greater number of capital convictions and death row candidates.
136. 21 U.S.C. § 848(o)(1) (1994). 137. Id. 138. Id. 139. See United States v. Cooper, 754 F. Supp. 617, 624 (N.D. Ill. 1990). 140. 481 U.S. 279 (1987). In McClesky, a sharply divided court held that statistical evi- dence of racial disparity was insufficient to declare the death penalty cruel and unusual. Id. at 306. 141. For an example of the racial breakdown that occurs in the implementation of the death penalty, in 1997, 74 men were executed. Of those, 41 were nonhispanic whites, 26 were blacks, 1 was black-Hispanic, 1 was American-Indian, and 1 was Asian. See Capital Punishment 1998, supra note 48. 142. As of early 1998, only 46 prosecutions had even been authorized under the Drug Kingpin Act, and only six had been capital convictions, one of which was later overturned. John P. Cunningham, Death in the FederalCourts: Expectations and Realities of the Federal Death Pen- alty Act of 1994, 32 U. RICH. L. REV. 939, 952 (1998). 143. These prisoners are Chandler, Tipton, Johnson, Roane, and Garza. See supranote 3. 2000] Federal Death Penalty 1209
III. THE FEDERAL DEATH PENALTY ACT OF 1994
Let us get tough with an effective, believable, and timely death pen- alty for violent offenders.'44 In 1994 Congress introduced the largest expansion of the death penalty in our nation's history when, in connection with the Violent Crime and Law Enforcement Act of 1994,141 it introduced the new federal death penalty, a broad expansion of federal capital crimes. In a move void of substantial expressed intention, Congress greatly aug- mented the list of death-eligible offenses. Congress enacted this sweepingly broad measure for two purposes: to expand the number of crimes that potentially could be punished by death, and to provide a new federal system for the imposition of the death penalty.146 Discus- sion concerning this expansion of the death penalty did not go far beyond these two objectives, with "little substantive discussion on the overall effectiveness, merits, and morality of the death penalty."'47 Congress seemed to focus more on the procedure of the act than on its 148 substantive necessity. In creating the Federal Death Penalty Act of 1994 (the 1994 Act), Congress recognized that it repeated much of the procedure in the Drug Kingpin Act. 49 However, when compared to the Drug Kingpin Act, the Federal Death Penalty Act of 1994 has much broad- er focus and application. The 1994 Act federalized the death penalty for approximately sixty crimes.' While the multitude of offenses
144. Representative Newt Gingrich, 140 CONG. REC. H9526 (daily ed. Sept. 22, 1994) (as quoted in Charles Kenneth Eldred, The New Federal Death Penalties, 22 AM. J. CRIM. L. 293, 294 n.6 (1994)). 145. 42 U.S.C. ch. 136 (1994). 146. See Kevin J. Sullivan & Gaela K. Gehring, Capital Punishment, 83 GEO. L.J. 1281, 1308 (1995); See Cunningham, supra note 19, at 953-54. 147. Cunningham, supra note 19, at 953. "Senator Joseph Biden summed up the common sentiments favoring the expansion of the federal death penalty when he said, 'Iagree that tougher penalties for violent offenders are important. That is why.., we have included the largest ever expansion of the death penalty ... ' Charles Kenneth Eldred, The New FederalDeath Penalties, 22 AM. J. CRIM. L. 293, 294 (1994). 148. Cunningham, supra note 19, at 953. 149. See 18 U.S.C. § 3591(b) (1994). Because the Drug Kingpin Act is mentioned in the text of the 1994 Act, an argument could be made that the 1994 Act subsumed the earlier provi- sion. Courts, however, have seemed to "meld" the two statutes when consistent, and adopted the more protective provisions when faced with differences. See Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 FORDHAM URB. L.J. 347, 391 (1999). In fact, the differences between the acts assure that the 1994 Act did not repeal the Drug Kingpin Act. See Jones v. United States, 119 S.Ct. 2090, 2110-11 n.2 (1999) (Ginsburg, J., dissenting). 150. The scope of the death eligible offenses is wide. The list of capital-eligible offenses covered by 18 U.S.C. § 3591 includes: 18 U.S.C. § 1210 Seattle University Law Review [Vol. 23:1189 that are currently punishable by death may seem excessive, the target of the coverage may be appropriate, at least when compared with the nation's history."' Most of the crimes designated as death penalty precursors involve murder. However, the 1994 Act includes crimes that do not involve homicide. One commentator has grouped the precursor crimes into three separate classifications: (1) crimes involving risky activity resulting in a homicide, such as kidnapping or hostage-taking resulting in death; (2) crimes involving direct homicide, such as the murder of governmental officials; and (3) nonhomicide crimes like 5 2 espionage and treason.
1324(a) (1994) (alien smuggling resulting in death); 18 U.S.C. §§ 32, 34 (destruction of aircraft resulting in death); 18 U.S.C. §§33, 34 (destruction of motor vehicles resulting in death); 18 U.S.C. § 36(b) (drive-by shooting); 18 U.S.C. § 37 (violence at interna- tional airport resulting in death); 18 U.S.C. § 115 (murder of federal official's family member); 18 U.S.C. §§ 241, 242, 245, 247 (deprivation of civil rights resulting in death); 18 U.S.C. § 351(b), (d) (murder of government officials); 18 U.S.C. § 794(b) (espionage); 18 U.S.C. § 844(d) (use of explosives resulting in death); 18 U.S.C. § 924(I) (use of firearm during a violent or drug trafficking crime resulting in death); 18 U.S.C. § 930(c) (murder in a federal facility); 18 U.S.C. § 1091(b)(1) (genocide); 18 U.S.C. § 1111 (b) (first-degree murder); 18 U.S.C. § 1114 (murder of federal employ- ee); 18 U.S.C. § 1116(a) (murder of foreign official or internationally protected per- son); 18 U.S.C. § 1118(a) (murder by federal prisoner); 18 U.S.C. § 1119(b) (foreign murder of U.S. national); 18 U.S.C. § 1120(b) (murder by escaped federal prisoner); 18 U.S.C. § 1121(a) (murder of persons aiding federal investigators or state correc- tional officers); 18 U.S.C. § 1201(a) (kidnapping resulting in death); 18 U.S.C. § 1203(a) (hostage taking resulting in death); 18 U.S.C. § 1503(b)(1) (murder of court officer or juror); 18 U.S.C. § 1512(2)(A) (murder of witness); 18 U.S.C. § 1513(2)(A) (retaliation against witness resulting in death); 18 U.S.C. § 1716 (mailing injurious article resulting in death); 18 U.S.C. § 1751(a) (murder of President and staff); 18 U.S.C. § 1958(a) (murder-for-hire); 18 U.S.C. § 1959(a)(1) (murder in aid of racket- eering); 18 U.S.C. § 1992 (wrecking of trains resulting in death); 18 U.S.C. § 2113(e) (bank robbery resulting in death); 18 U.S.C. § 2119(3) (carjacking resulting in death); 18 U.S.C. § 2245 (sexual abuse resulting in death); 18 U.S.C. § 2251(d) (sexual exploi- tation of children resulting in death); 18 U.S.C. §§ 2280(a), 2281(a) (maritime violence resulting in death); 18 U.S.C. § 2332a(a) (use of weapons of mass destruction); 18 U.S.C. § 2340A(a) (torture resulting in death); 18 U.S.C. § 2381 (treason); 18 U.S.C. § 3591(b) (large-scale continuing criminal enterprise); 49 U.S.C. § 46502 (1994) (aircraft piracy resulting in death). David J. Novak, Anatomy of a Federal Death Penalty Prosecution: A Primerfor Prosecutors, 50 S.C. L. REV. 645 648 n.27 (1999). 151. An interesting comparison is the criminal code for the New Haven Colony, which called for the death sentence for any person who by "direct, express, impious or presumptuous ways, deny the true God and His attributes." The colony also condemned any "child or chil- dren, above sixteen years of age, and of sufficient understanding, [who] shall smite natural father or mother, unless thereunto provoked and forced for their own self-protection from death or maiming, at the complaint of said father and mother." JAMES A. INCIARDI, CRIMINAL JUSTICE 488-89 (3d ed. 1990) (quoting HARRY ELMER BARNES, THE REPRESSION OF CRIME 220 (1926)). 152. See Charles Kenneth Eldred, The New Federal Death Penalties, 22 AM. J. CRIM. L. 293, 296 (1994). See also Cunningham, supra note 22, at 953-54. 20001 Federal Death Penalty 1211
As with the Drug Kingpin Act, under the 1994 Act, the govern- ment must file notice of its intent to seek the death penalty within a reasonable time before trial or before the entering of a guilty plea." 3 This notice must specify that "the government believes that the cir- cumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified" and that the government will seek a death sentence. 5 4 The notice also must set forth the aggravating fac- tors that the government will demonstrate in order to justify a sen- tence of death if the defendant is convicted.' The second phase of the trial begins after the defendant has been found guilty. The sentencing hearing takes place before either the same jury that heard the guilt portion, a new jury if the defendant pleaded guilty or was found guilty by the court, 5 6 or by the court upon defendant's request and the government's approval.'57 As with the Drug Kingpin Act, no presentence report is prepared. The proc- ess of presenting aggravating and mitigating factors is also similar in both acts.' Furthermore, the prosecution must prove aggravating factors beyond a reasonable doubt, while the defense must prove miti- gating factors only by a preponderance of the evidence."' In the sentencing hearing, the government must first demon- strate the aggravating factors that would justify a capital sentence. 60 The specific factors for consideration in the 1994 Act, however, differ from those in the Drug Kingpin Act. This is largely due to the broad spectrum of crimes that fall under the purview of the 1994 Act, as compared with the narrow focus on drug-related homicides in the Drug Kingpin Act. The aggravating factors in the 1994 Act are grouped into three separate classifications: (1) aggravating factors for nonhomicide crimes; (2) aggravating factors for homicide; and (3) aggravating factors for drug offenses. 16 The statute also provides for the introduction of nonstatutory aggravating factors when notice has been provided. 162 Unlike the Drug Kingpin Act, under the 1994 Act, the jury does not need to consider a "gateway" factor before proceed- ing with the analysis of the other proffered aggravating factors.
153. 18 U.S.C. § 3593(a) (1994). 154. 18 U.S.C. § 3593(a)(1) (1994). 155. 18 U.S.C. § 3593(a)(2) (1994). 156. Anewjury will also be seated in the case of reconsideration of the sentence. 18U.S.C. § 3593(b) (1994). 157. Id. 158. 18 U.S.C. § 3593(c) (1994). 159. Id. 160. Id. 161. Id. 162. 18 U.S.C. § 3593 (1994). 1212 Seattle University Law Review [Vol. 23:1189
The statute provides three aggravating factors for the two non- homicide crimes (espionage and treason) that are covered under the 1994 Act. The court allows the jury to consider whether the defend- ant had been convicted of another crime involving espionage or trea- son for which death or life imprisonment could have been the punish- ment, whether the defendant created a "grave risk of substantial danger to the national security" through the criminal acts, and whe- ther the defendant's act created a grave risk of death to another 163 person. Next, the statute lists the sixteen aggravating factors that are applicable to a capital prosecution for homicide. 164 Some of these fac- tors are found in the Drug Kingpin Act, while others are not. Aggra- vating factors, such as whether the offense was committed against a high public official, previous conviction for an offense involving a fire- arm, and previous conviction of two or more serious offenses for which the punishment is more than one year, are enumerated aggra- vating factors. The aggravating factors also are tailored to the specific predicate offense. For example, in offenses involving the sexual abuse of children, the government may present evidence of prior convictions for sexual assault or child molestation. 6' The 1994 Act provides additional aggravating factors to be con- sidered for the "drug offense death penalty."' 66 These factors include the previous conviction for an offense for which death or life impris- onment is the penalty, previous conviction of two or more serious offenses, previous serious drug felony convictions, and the use of a firearm in the criminal episode or enterprise. The statute also pro- vides specific factors for crimes involving the importation, distribu- tion, and manufacture of drugs, allowing the following factors to elevate the offense to a capital crime: (1) distribution of drugs near of a lethal schools, (2) the use of minors in trafficking,67 and (3) presence adulterant in the controlled substance.1 Finally, as in the case of the Drug Kingpin Act, nonstatutory factors may be presented by the government as aggravating factors so long as the defendant is given reasonable notice.'68 The use of such nonstatutory factors is encouraged to tailor the prosecution to the facts of the case.'69 Courts have upheld the use of nonstatutory aggravating
163. 18 U.S.C. § 3592(b) (1994). 164. 18 U.S.C. § 3592(c) (1994). 165. 18 U.S.C. § 3592(c)(15) (1994). 166. 18 U.S.C. § 3592(d) (1994). 167. 18 U.S.C. § 3592(d)(5)-(8) (1994). 168. 18 U.S.C. § 3593(a) (1994). 169. See United States v. Frank, 8 F. Supp. 2d 253, 266-67 (S.D.N.Y. 1998). 2000] FederalDeath Penalty 1213 factors against defense challenges based on cruel and unusual punish- 2 ment, 170 ex post facto violations, 17' allegations of vagueness, 7 and inference that was unduly weighty.'73 The mitigating factors in the 1994 Act are also all in the Drug Kingpin Act.'74 The Drug Kingpin Act, however, does include sev- eral mitigating factors that are not present in the 1994 Act. These include the unforseeability of the crime, the age of the defendant, and the lack of a significant criminal record. These factors could still be presented to the sentencing jury, or as a nonstatutory aggravating fac- tor under the Drug King Pin Act pursuant to the catch-all provision allowing for "[o]ther factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence."' 75 After the presentation of the aggravating and mitigating factors, the fact finder returns the verdict as to punishment by special find- ings. The mitigating factors may be found by only one member of the jury, but the aggravating factors must be agreed upon unanimously.'76 Unlike under the Drug Kingpin Act, the jury may recommend death, life imprisonment, or some lesser sentence.'77 If no aggravating factor is found, the court must impose a sentence other than death.'78 A jury must unanimously agree to a death sentence.'79 Moreover, like the Drug Kingpin Act, the 1994 Act contains an antidiscrimination provi- sion, requiring the jury to return a certificate stating that they would of death regardless of the defendant or victim's have returned a verdict 180 race, color, religious beliefs, national origin, or sex. The 1994 Act sets out appellate procedure to be followed after conviction.' The statute specifies that the reviewing court will exam- ine the entire record, addressing all substantive and procedural issues raised on appeal. The reviewing court considers whether the sentence of death was imposed under the influence of passion or prejudice, and
170. See Frank, 8 F. Supp. 2d at 264-65; United States v. Chanthadara, 928 F. Supp. 1055, 1057 (D. Kan. 1996). 171. See Frank, 8 F. Supp. 2d at 267; United States v. McVeigh, 944 F. Supp. 1478, 1486 (D. Colo. 1996); United States v. Nguyen, 928 F. Supp. 1525, 1537-38 (D. Kan. 1996); Chanthadara,928 F. Supp. at 1058. 172. See McVeigh, 944 F. Supp. at 1490. 173. See id. at 1489. 174. 18 U.S.C. § 3592(a) (1994). 175. 18 U.S.C. § 3592(a)(8) (1994). 176. 18 U.S.C. § 3593(d) (1994). 177. 18 U.S.C. § 3593(e) (1994). 178. 18 U.S.C. § 3593(d) (1994). 179. 18 U.S.C. § 3593(e) (1994). 180. 18 U.S.C. § 3593(f) (1994). 181. 18 U.S.C. § 3593 (1994). 1214 Seattle University Law Review [Vol. 23:1189 must determine if the evidence supports the finding of the special aggravating factor. The penalty of death will not be vacated for harm- less error, so long as the government shows harmlessness beyond a 1 2 reasonable doubt. 1 The appellate process has been held by lower 183 courts to conform to equal protection requirements. After conviction, the defendant is committed to the custody of the Attorney General until the appeal and postconviction avenues are exhausted.'84 The Attorney General then releases the defendant into the custody of a United States Marshal who oversees the execution. 85 Interestingly, the 1994 Act calls for the execution to be per- formed using the method of execution used by the state in which the sentence is carried out.8 6 If the state where the sentencing took place does not have a death penalty, the court must designate another state to look to for the manner in which the death sentence should be car- ried out.' The statute also specifies that the death penalty should not be carried out on a woman during pregnancy,'88 a person "who is men- tally retarded," or a person who lacks the capacity to understand the 189 death penalty and the reason for its imposition. Another interesting area in which the 1994 Act has departed from the traditional capital punishment jurisprudence of the state courts is the inclusion of several nonhomicidal crimes. 190 While the Supreme Court has never specifically held the death penalty for all nonhomicide crimes to violate the Eighth Amendment, it has held that a death penalty for a specific crime violates the Eighth Amendment. Additionally, most state courts hold that such use of the death penalty violates the Eighth Amendment. 9' Two years after Gregg, in Coker v.
182. 18 U.S.C. § 3593(c) (1994). 183. Nguyen, 928 F. Supp. at 1548. 184. 18 U.S.C. § 3596(a) (1994). 185. 18 U.S.C. § 3593(a) (1994). 186. 18 U.S.C. § 3596(a) (1994). 187. Id. 188. This, however, would be an unusual situation as only 1.3% of those on death row nationwide are women. See Capital Punishment 1998, supra note 45. In 1997, however, both Texas and Florida executed a woman. Id. Also, in the past century, the federal government has executed two women. Id. 189. 18 U.S.C. § 3596(b),(c) (1994). 190. United States Senator Orrin Hatch has argued that There has always been a Federal death penalty, and there has always been a Federal death penalty for nonhomicide offenses. To begin with, death has always been the traditional and accepted punishment for treason, as well as for some forms of espio- nage. This is true worldwide, and it is reflected in our Federal Criminal Code.... The Supreme Court has never said nor implied that the current prescribed penalty for treason-death-is in any way unconstitutional. 137 CONG. REC. S8496-01, S8499 (daily ed. June 24, 1991). 191. Louisiana is a notable exception to this trend. Recently, Louisiana upheld the consti- 2000] Federal Death Penalty 1215
Georgia,192 the United States Supreme Court, noting that few states had a statutory death penalty for rape, and that only a negligible num- ber of juries had condemned an individual to die for rape, held that rape should not be punishable by death.'93 After evaluating the indicia of common societal opposition to such an application of the death penalty, the Court noted that "in the end our own judgment94 will be brought to bear on the acceptability of the death penalty." 1 Yet Coker did not hold that capital punishment may be imposed only for homicide. Several states have routinely invalidated state laws that imposed the death penalty absent a homicide on the basis of dis- proportionality. 19 Even so, in several states nonhomicide crimes may still serve as a basis for the death penalty. 96 The 1994 Act's inclusion of nonhomicide crimes, however, has not yet been addressed because every individual currently sitting on federal death row was convicted of a crime involving a murder. Resolution of this issue must therefore be reserved for the future.'97 One of the most interesting elements of the 1994 Act involves an omission. At the time Congress debated the 1994 Act, it also consid- ered an amendment entitled the "Racial Justice Act."' 198 This amend- ment, which was ultimately rejected, augmented the "antidiscrim- ination provision's" protection regarding racial bigotry in capital sentencing, providing that "no person shall be put to death under color of State or Federal law in the execution of a sentence that was imposed based on race."' 99 This amendment would have required a statistical inquiry into the implementation of the death penalty, focus-
tutionality of a statute authorizing the death penalty for a nonhomicide crime. See State v. Wil- son, 685 So. 2d 1063 (La. 1996), cert. denied, Bethley v. Louisiana, 117 S. Ct. 2425 (1997). 192. 433 U.S. 584 (1977). 193. Id. at 599. 194. Id. at 597. 195. For an analysis of the response of the states to Coker, see Utah v. Gardner, 947 P.2d 630 (Utah 1997), in which the Utah Supreme Court held that the imposition of the death penalty for aggravated assault by a prisoner was disproportionate to the crime. But see Wilson, 685 So. 2d at 1063 (upholding the death penalty as a punishment for the rape of a child under twelve years of age). 196. At least five states still prescribe the death penalty for treason (Arkansas, California, Colorado, Georgia, and Louisiana). Louisiana allows for the death penalty for aggravated rape of a child victim under age 12. South Dakota allows for the death penalty for aggravated kidnap- ping. See Capital Punishment 1998, supra note 45. 197. For discussion of the use of the death penalty for nonhomicide crimes see Jeffery C. Matura, When Will It Stop? The Use of the Death Penaltyfor Non-Homicide Crimes, 24 J. LEGIS. 249 (1998). 198. H.R. REP. No, 103-458, 103d Cong., 2d Sess. 1994. For a discussion of the Racial Justice Act see Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 FORDHAM URB. L.J. 347, 386-87 (1999). 199. H.R. REP. No, 458, 103d Cong., 2d Sess. 1994. 1216 Seattle University Law Review [Vol. 23:1189 ing on any disparity in the number of members of a particular race who are executed compared to the race of all defendants. The amend- ment would have allowed an inference of discrimination to be estab- lished by showing disparity, which would then have shifted the burden to the government to show nonracial factors to explain the dis- parities. Because of criticism of the amendment, °0 the act did not pass.
IV. APPLICATION OF THE FEDERAL DEATH PENALTY 1 Other sins only speak, Murder cries out. 2o The federal prosecutor is now armed with two alternative capital penalty statutes: the Drug Kingpin Statute and the Federal Death Penalty Act. So far, twenty-one men sit on federal death row as a result of these statutes. The judicial proceedings that have occurred in the wake of the Oklahoma City bombings, particularly with Timothy McVeigh's placement on death row, have accentuated the general public interest in the death penalty as it is enforced on a federal scale. In recent months, however, two death row inmates have drawn national attention, one for his legal proceedings and one for his immi- nent doom. Soon, unless a pardon is issued, Juan Raul Garza will become the first man to be executed in Terre Haute's death chamber under federal law since 1963. Additionally, the Supreme Court recently upheld the conviction of Louis Jones, and in the process, has for the first time sustained a conviction under the Federal Death Pen- alty Act of 1994.202 Examining the cases against these two individu- als203 can give us a better understanding of the application of the federal death penalty.
A. Application of the Drug Kingpin Statute: Juan Raul Garza Juan Raul Garza was a businessman 20 4 who, having come from a family of farm workers and having never graduated from high school, surpassed most people's expectations. Operating out of Brownsville,
200. For instance, Senator Orrin Hatch called the amendment the "Death Penalty Aboli- tion Act." See Charles Kenneth Eldred, The New Federal Death Penalties, 22 AM. J. CRIM. L. 293, 304 (1999). 201. ANNE HOCKING, DEATH LOVES A SHINING MARK (as quoted in THE QUOTABLE LAWYER § 91.8, at p. 225 (David Shrager & Elizabeth Frost eds., 1986)). 202. Jones v. United States, 119 S. Ct. 2090 (1999). 203. Both of these federal cases in the media arise out of Texas. Texas is by far the most prolific executioner, accounting for nearly a third of all executions. 204. United States v. Flores, 63 F.3d 1342 (5th Cir. 1995), cert. denied, 519 U.S. 825 (1996) (Flores was a co-defendant of Garza). See also United States v. Garza, 165 F.3d 312 (5th Cir. 1999), cert. denied, 120 U.S. 502. 2000] FederalDeath Penalty 1217
Texas, Garza earned hundreds of thousands of dollars in the eighties and early nineties. Through his thrift and industry, Garza distributed his goods nationally, finding especially flourishing markets in Texas, Louisiana, and Michigan. Garza originally purchased his product from a supplier in Mexico, but later cut out the middleman, sending his own workers across the border. Yet, like many businessmen, Gar- za encountered difficulties getting his product to his target markets. This was not surprising, as Garza sold enormous amounts of mari- juana. 05 As Garza built his intricate web of drug trafficking, he encoun- tered great setbacks when police confiscated his deliveries. These set- backs made him distrustful of his employees, and Garza suspected that several of them may have been in collusion with the police.0 6 Garza employed unorthodox employee dispute resolution practices- when Garza was suspicious of employees' behavior, he simply had them killed. Suspecting that Erasmo De La Fuente, a fellow drug smuggler, had been informing the police about his shipments, Garza ordered his subordinate to kill him.2 7 Garza also ordered the murder of De LaFuente's associate Giliberto Matos. Garza's men shot Matos in the head, and five months later, shot De La Fuente in the head twice as he left his Brownsville nightclub." 8 Garza committed the third murder himself. After Thomas Rumbo surrendered 360 pounds of marijuana and agreed to help the police, Garza suspected Rumbo of stealing the drugs for himself. Arriving at Rumbo's house, Garza persuaded Rumbo to get into his pickup with four other people.0 9 While they drove, Garza interro- gated Rumbo and was dissatisfied with the results. Stopping on a deserted rural road, Garza told Rumbo to get out of the vehicle and walk home. Rumbo did, but complained that he did not want to walk because he had just purchased new shoes. After he got out, Garza shot him in the back of the head. Garza then pulled his body into the underbrush and shot him four more times.210 Law enforcement finally caught up with Garza. Using phone taps, surveillance, and informants, law enforcement officers gathered information culminating in a U.S. Customs Service raid of the homes of Garza and his associates. Garza, however, escaped to Mexico. 1'
205. See Flores, 63 F.3d at 1351-52. 206. Id. 207. Id. 208. Id. 209. Id. 210. Id. 211. Id. 1218 Seattle University Law Review [Vol. 23:1189
While Garza was in Mexico, U.S. Customs made plea agreements with the members of Garza's organization they had captured, so that when they located him, they had sufficient probable cause to charge Garza with operating a continuing criminal enterprise, the three homi- cides in furtherance of that enterprise,212 and various violations of drug and money laundering laws. At trial, a jury found Garza guilty of murder.214 In the penalty the jury unanimously phase, after hearing evidence and argument, 215 found that Garza had intentionally killed De La Fuente and Rumbo and had engaged in conduct intended to kill them or employed lethal force against them. 216 The jury only found the latter factor in the murder of Matos. Having found at least one of the precursor factors, the jury then considered the other aggravating factors, both statutory and nonstatutory. The jury unanimously found the statutory factors of premeditation and planning, 27 and that the murders of Matos and De La Fuente involved the payment of something of pecuniary value.218 Turning to the nonstatutory factors, the jury found that Garza constituted a continuing danger to society because of his continuous violent and brutal acts. The jury also found as aggravating factors that Garza had been responsible for five additional murders, that four of those murders were premeditated, two of those had been in further- ance of the continuing criminal enterprise, and two had been for the payment of something of pecuniary value.219 Then, examining the mitigating factors, the jury found that three statutory mitigating factors applied. The jury found that Garza was youthful,220 that the victims had consented to the criminal conduct that had caused their deaths,221 that other defendants who were equally
212. 21 U.S.C. § 848(a), (c), (e) (1994); 18 U.S.C. § 2 (1994). 213. These charges included conspiracy to import more than 1,000 kilograms of marijuana into the United States from Mexico, 21 U.S.C. § 963, 952(a)(2), and 960(b)(1)(G); conspiracy to possess with intent to distribute more that 1,000 kilograms of marijuana, 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(vii); possession with intent to distribute approximately 163.6 kilo- grams and 586.3 kilograms of marijuana, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(vii); and pos- session with intent to distribute 95.4 kilograms of marijuana, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Garza, 165 F.3d at 312. 214. Id. At closing arguments, Garza's counsel called him "less than an angel, but no drug baron." Violent Drug Boss Would Be 1st to Die Under Drug Kingpin Law, CHICAGO TRIBUNE, October 18, 1999, at 10. 215. Garza, 165 F.3d at 1366; see 21 U.S.C. § 848(n)(1)(A) (1994). 216. Id.; see 21 U.S.C. § 848(n)(1)(C) (1994). 217. Garza, 165 F.3d at 1373; see 21 U.S.C. § 848(n)(8) (1994). 218. Garza, 165 F.3d at 1367; see 21 U.S.C. § 848(n)(6) (1994). 219. Id. 220. Id.; see 21 U.S.C. § 848(m)(5) (1994). 221. Id.; see 21 U.S.C. § 848(m)(9) (1994). 2000] FederalDeath Penalty 1219
as culpable would not be punished by death,222 and that Garza acted under unusual and substantial duress. 23 The jury also found a non- statutory mitigating factor, but did not specify which one they found. Finding that the aggravating factors outweighed the mitigating factors, the jury recommended that Garza receive the death sentence. Fol- lowing this recommendation, on August 2, 1993, United States Dis- trict Court Judge Filemon B. Vela sentenced Garza to death.224 In 1994, Garza, as the only federal inmate on death row, gave an interview, in which he stated, "I didn't kill any of those people. I'm 22 not responsible. 1 On direct appeal, Garza raised numerous issues, only some of which related to the Drug Kingpin Act.226 Garza predicated his chal- lenges that related directly to the Drug Kingpin Act on the Supreme Court case of Simmons v. South Carolina.227 Garza relied on the Sim-
222. Id.; see 21 U.S.C. § 848(m)(8) (1994). 223. Id.; see 21 U.S.C. § 848(m)(2) (1994). 224. After the sentence of death, Garza filed a motion for a new punishment trial due to the improper balancing of aggravating circumstances which "placed a thumb ... on Death's side of the Scale." This motion was denied. United States v. Garza, 77 F.3d 481 (5th Cir. 1995), cert. denied, 519 U.S. 825 (1996). 225. Smuggler Faces Death by Injection, Terre Haute Inmate Could Become the First Federal Prisonerto be Executed Since 1963, AUGUSTA CHRONICLE, October 18, 1999, at A6. This, how- ever, does not mean that each individual on death row is unrepentant, or even cruel and inhu- mane. Indeed, the following words penned by David Allen Osborne while on death row in Idaho both express the remorseful words of a penitent soul and provide fodder for any supporter of the deterrence theory of sentencing: How I came to be here God please let others see Let them have a chance to change Before someday they are me
But how I came to be here Should be quite simple to tell One does not get to Heaven When he walks the Road to Hell!" As quoted in L. KAY GILLESPIE, THE UNFORGIVEN: UTAH'S EXECUTED MEN 199 (1991). 226. Specifically, Garza raised issues concerning voir dire, the admission of certain tape recordings, the introduction of testimony, the illegality of the stop of a co-conspirator, and issues concerning confessions. United States v. Flores, 63 F.3d 1342, 1352-68 (5th Cir. 1995). 227. 512 U.S. 154 (1994). In Simmons, the petitioner received the death penalty for the beating death of an elderly woman. At that time, South Carolina allowed for a sentence of life in prison without the possibility of parole for a conviction of a capital offense. The defense sought a jury instruction that would indicate that life imprisonment would carry no possibility of parole, but the trial court refused to instruct the jury on parole ineligibility. On appeal to the Supreme Court, the Court ruled that when "the alternative sentence to death is life without parole, ... due process plainly requires that [the defendant] be allowed to bring [parole ineligibility] to the jury's attention by way of argument by defense counsel or an instruction from the court." Simmons, 512 U.S. at 169 (citing Gardner v. Florida, 430 U.S. 349, 362 (1977)). The Simmons Court reasoned that when a state imposes the death penalty on the premise that the convicted individual poses a dangerous threat to society, the fact that the defendant may 1220 Seattle University Law Review [Vol. 23:1189 mons holding that "when a defendant is legally ineligible for parole and the government uses the defendant's future dangerousness as an aggravator, due process requires that the jury be informed that if he 2is28 not executed, the defendant will spend the rest of his life in prison. Garza argued that under the Drug Kingpin Act he was ineligible for parole or anything less than a life sentence, so the jury should have been informed that the only alternative to the death sentence was life without parole. The Fifth Circuit found this construction of Garza's situation incorrect. The Fifth Circuit reasoned that under the Act as it read at the time, the base offense level for the homicides under 21 U.S.C. § 848(e) would be life imprisonment. Yet, had the jury not returned a death sentence, Garza could have received a downward departure based on the mitigating factors the jury found.229 Garza further argued that even if Simmons had not been directly violated, the spirit of the Supreme Court holding had been disregarded because, when focusing on future dangerousness, the government was well aware that Garza would most likely never be freed from prison. This argument, however, was unsuccessful, as the government briefly had commented on the possibility of a punishment of a term of years.23° Ultimately Garza's Simmon's contention failed because it relied on a faulty interpretation of the Drug Kingpin Act sentencing proce- dure. 21 U.S.C. § 848 provides that "[u]pon the recommendation that the sentence of death be imposed, the court shall sentence the defen- dant to death.' 23' The section then provides that the court impose the sentence as authorized by law. The Fifth Circuit thus agreed with prior cases holding that if the jury did not recommend the death pen- alty, then the jury is unable to return a binding recommendation to any other sentence.232 The court did admit that the 1994 Act seemed to give the jury the ability to recommend a life sentence without parole
receive life without possibility of parole "will necessarily undercut the State's argument regarding the threat the defendant poses to society." Simmons, 512 U.S. at 169. This reasoning prevents a "false dilemma by advancing generalized arguments regarding the defendant's future dangerous- ness while, at the same time, preventing the jury from learning that the defendant will never be released on parole." Id. at 171. 228. Flores, 63 F.3d at 1367. 229. Id. at 1368. Specifically, because the jury found that Garza had acted under duress, Garza might qualify for a downward departure under U.S.S.G. 5K2.12. Id. 230. Id. 231. 21 U.S.C. § 848 (1994). 232. See Flores, 63 F.3d at 1369. The court squared its reasoning with the Eleventh Circuit case of United States v. Chandler, 996 F.2d 1073, 1084-85 (11th Cir. 1993), cert. denied, 512 U.S. 1227 (1994). 2000] Federal Death Penalty 1221 rather than the death penalty, but did not resolve any conflict in the law because Garza's conviction occurred prior to the 1994 Act. Garza next argued that the aggravating factors under 21 U.S.C. § 848(n)(1) were unconstitutional as they did not sufficiently narrow the class of defendant that would be eligible for the death penalty. Focus- ing on the "gateway" factors that act as both a precursor and an aggra- vating factor in the penalty phase, Garza argued that their curious introduction in the death penalty scheme violated the constitution.233 He argued that under Enmund234 and Tison,235 those factors would have to be found in every case where an individual could be executed. Thus "'a sentencer fairly could conclude that [it] applies to every defendant eligible for the death penalty [and it] is constitutionally infirm.'236 To decide whether the precursor factors sufficiently narrowed the class of those eligible for the death penalty, the court necessarily looked at the cases from which the death penalty class would have 2to37 be narrowed. Comparing the definition of murder in the first degree with the underlying offense under the Drug Kingpin statute,238 the court concluded that by selecting from those who under the Kingpin
233. Flores, 63 F.3d at 1370. 234. Enmund v. Florida, 458 U.S. 782 (1982). 235. Tison v. Arizona, 481 U.S. 137 (1987). 236. Flores,63 F.3d at 1370 (quoting Arave v. Creech, 507 U.S. 463, 474 (1993)). 237. Murder in the first degree is statutorily defined as follows: Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, ag- gravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. 18 U.S.C. § 1111 (1994). 238. The Drug Kingpin Act explains murder as follows: (A) any person engaging in or working in furtherance of a continuing criminal enter- prise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) of this title who intentionally kills or counsels, com- mands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death; and (B) any person, during the commission of, in furtherance of, or while attempting to avoid apprehension, prosecution or service of a prison sentence for, a felony violation of this subchapter or subchapter II of this chapter who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of any Federal, State, or local law enforcement officer engaged in, or on account of, the per- formance of such officer's official duties and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death. 21 U.S.C. § 848(e) (1994). 1222 Seattle University Law Review [Vol. 23:1189
Act were "at least reckless of killing, the (n)(1) factors genuinely nar- row the class of defendants who have committed murder., 239 The court especially noted that the presence of a "Continuing Criminal Enterprise" factor and the requirement that the jury find an aggravat- ing factor in addition to the precursor were significant in narrowing the class of defendants eligible for the death penalty. Garza also argued that the "substantial planning" aggravating factor under 21 U.S.C. § 848(n)(8) was unconstitutionally vague and 24 that the district court failed to cure the defect. " The jury found this aggravating factor to be present in all three of the murders for which Garza had been convicted. 24 1 Focusing on the fact that "[a]n aggravat- ing factor must 'channel the sentencer's discretion by [a] clear and objective standard [] that provide[s] specific detailed guidance,"' the Fifth Circuit dismissed Garza's vagueness argument.242 Concurring with other federal courts that had addressed the issue,243 the court found that the "substantial planning" factor has a "'common-sense core meaning ... that criminal juries should be capable of under- standing. ",244 Finally, Garza argued that the district court committed reversible error by informing the jury that, under the Drug Kingpin Act, the jury had to find that the aggravating factors substantially outweigh the mitigating factors in order to impose the death penalty. Garza argued that the jury should have been instructed that they must find the aggravating factors to be more weighty beyond a reasonable doubt.245 The Fifth Circuit noted that "the Supreme Court has 'never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required."'246 Thus, the Drug Kingpin Act provided a constitutionally valid method for considering the mitigating and aggravating factors in the penalty hear- ing.
239. Flores, 63 F.3dat 1371. 240. Id. at 1373. 241. The government argued that because Garza never requested the District Court to further define the term "substantial planning," the plain error standard would prevent any reversal on this point. The court found the plain error standard inapplicable, however, because Garza did object during the penalty phase. Id. 242. Id. at 1373 (quoting Creech, 507 U.S. at 471). 243. Specifically, the court relied on United States v. Cooper, 754 F. Supp. 617, 623 (N.D. Ill.1990). In Cooper, the court upheld the factor because the term "substantial" "is frequently encountered and readily understood in a number of contexts in criminal law." 754 F. Supp. at 623. 244. Flores, 63 F.3d at 1373 (quoting United States v. Tuilaepa, 512 U.S. 967, 973 (1994)). 245. Flores, 63 F.3d at 1376. 246. Id. (quoting Franklin v. Lynaugh, 487 U.S. 164, 179 (1988) (plurality opinion)). 20001 Federal Death Penalty 1223
After the decision in the Fifth Circuit, Garza petitioned the Supreme Court for certiorari, which was denied.247 On December 1, 1997, Garza filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 in the Southern District of Texas.248 On April 9, 1998, the motion was denied. 249 The court soon after ruled that a certificate of appealability should be denied, and Garza sought relief from that 20 denial in the Fifth Circuit. 1 In the appeal of the denial of his certifi- cate of appealability, Garza argued that the Fifth Circuit had previ- ously denied him his Eighth Amendment right to meaningful appellate review by failing to explicitly address issues involving the introduction in his penalty phase of four unadjudicated murders that had occurred in Mexico. 21 The Fifth Circuit held that, even though the opinion did not reflect it, the broad assertion that Garza had not presented any error was expansive enough to cover the challenges he made on direct review.252 The court found that the issue had received full consideration and a ruling, and did not merit individual atten- tion.2"3 Garza argued that the introduction of the four unadjudicated murders denied him due process. Essentially, Garza argued that he did not have a fair opportunity to explain the evidence against him because he had no right to compulsory process or subpoena in Mexico, impairing his ability to defend himself against that aggravating fac- 2 4 tor. 1 Moreover, Garza argued that due to these international limita- tions, the government had an obligation to use its power to obtain exculpatory evidence that Garza was unable to obtain, and then dis- 25 close this evidence to Garza. " The court held that while under Brady 26 v. Maryland 1 the government has an obligation to turn over exculpa- tory evidence, the government had fulfilled this obligation by provid- ing Garza with all the exculpatory information it had.257 The court then held that the government had no obligation to conduct Garza's defense investigation for him, and that Garza had not argued with specificity what favorable witness or exculpatory evidence such a
247. Garza v. United States, 519 U.S. 825 (1996). 248. United States v. Garza, 165 F.3d 312, 313 (5th Cir. 1999). 249. Id. 250. Id. 251. Id. at 314. 252. Id. 253. Id. 254. Id. 255. Id. 256. 373 U.S. 83 (1963). 257. Garza, 165 F.3d at 314-15. 1224 Seattle University Law Review [Vol. 23:1189 fully-conducted investigation would have brought to light.5 8 The Fifth Circuit ultimately denied the appeal from the denial of the cer- tificate of appealability. On November 15, 1999, the Supreme Court again denied cer- tiorari. 259 Garza had by then exhausted his appeals, and absent an executive pardon,260 would be executed.
B. Constitutionalityof the Federal Death Penalty: United States v. Jones On February 18, 1995, United States Air Force Private Tracie Joy McBride was abducted from the Goodfellow Air Force Base in San Angelo, Texas. 261 During the subsequent investigation of her dis- appearance by the Office of the Air Force Special Investigations (OSI), it came to light that Sergeant Sandra Lane had filed a complaint against her ex-husband, Louis Jones, for an assault that had occurred two days before McBride's abduction. 62 The OSI informed the local police department, who issued an arrest warrant for Jones. After having been arrested by the local police, OSI investigators interrogated Jones, considering him a possible suspect in McBride's disappear- 263 ance. Waiving his Miranda rights, in a written statement Jones con- fessed to the abduction and murder of McBride.264 Jones then led investigators to a bridge twenty miles outside town under which the body of McBride had been buried.265 A later autopsy showed that McBride had been sexually assaulted and had died of blunt force trau- ma to her head. McBride had been beaten so violently that portions of her skull had been driven into her brain cavity or were entirely miss- ing.266 Jones stated that "'on [the day he murdered McBride], the de- mons he had suppressed throughout his life overwhelmed him, leading to tragic consequences.' 267
258. Id. at 315. 259. Garza v. United States, 120 S. Ct. 502 (1999). 260. Under the Constitution, the President has the "Power to grant Reprieves and Pardons for Offenses against the United States except in Cases of Impeachment." U.S. CONST. art. II, § 2. cl.1. 261. The facts of this case are derived from Jones' Fifth Circuit appeal, United States v. Jones, 132 F.3d 232 (5th Cir. 1998), and Jones v. United States, 119 S. Ct. 2090 (1999). 262. Jones, 132 F.3d at 237. 263. Id. 264. Id. 265. Id. 266. Id. 267. Boettcher, supra note 73, at 1098 (quoting Appellant's Initial Brief at 6, United States v. Jones, 132 F.3d 232 (5th Cir. 1998) (Nos. 96-10113, 96-10448)). 20001 FederalDeath Penalty 1225
Because of the special jurisdiction of the murder, Jones was indicted under 18 U.S.C. § 1201(a)(2) and charged with kidnapping with a resultant death.268 Following the procedure outlined in death penalty cases, the United States Attorney's Office filed a Notice of In- tent to Seek the Death Penalty. On October 23, 1995, a jury found Jones guilty.269 A separate hearing was then held to determine the sentence, a hearing from which the bulk of his appellate arguments would flow. During the sentencing hearing, the jury first found that Jones had the requisite intent to commit the crime pursuant to 18 U.S.C. § 3591(a)(2).2 70 The jury then considered whether or not the state had proven one of the statutorily listed factors and had considered the mitigating factors.2 71 The jury found two of the aggravating factors beyond a reasonable doubt: that Jones had caused the death of McBride during the commission of another crime27 2 and that the mur- der had been committed in an especially heinous, cruel, and depraved 273 manner. The jury also found two nonstatutory aggravating factors: "Tracy Joy McBride's young age, her slight stature, her background, and her unfamiliarity with San Angelo, Texas ' 274 and "Tracie Joy
McBride's personal characteristics and the effect of the instant offense2 on [her] family constituted an aggravating factor of the offense. 11 The jury, although not unanimously, found several mitigating factors. These factors included that Jones did not have a previous criminal record, had an impaired capacity to appreciate the wrongfulness of the act, acted under severe mental or emotional disturbance, had been subjected to abuse as a child, had served his country well in the armed forces, had a daughter who would be harmed by the trauma of her father's actions, was remorseful, was under duress at the time of the killing, and operated under mental disorders. 276 The jury also consid- ered an unclear factor concerning Jones' ex-wife. 277 Despite the miti-
268. See id. 269. Jones, 132 F.3d at 237-38. 270. Id. 271. Id. 272. See 18 U.S.C. § 3592(c)(1) (1994). 273. See 18 U.S.C. § 3592(c)(6) (1994). Courts have found under the 1994 Act that the "heinous, atrocious, or cruel" factor is not "so broad as to encompass any murder." United States v. Chanthadra, 928 F. Supp. 1055, 1057 (D. Kan. 1996). 274. Jones v. United States, 119 S. Ct. 2090, 2097 n.3 (1999). The factors are stated as they appeared on the Special Findings form. 275. Id. 276. United States v. Jones, 132 F.3d 232, 238-39 n.3 (5th Cir. 1998). 277. Id. at 239. 1226 Seattle University Law Review [Vol. 23:1189 gating factors, the jury unanimously found the aggravating factors to be more weighty and recommended that the death penalty be imposed on Jones.278 On appeal to the Fifth Circuit, Jones attacked his conviction on several grounds, focusing his appeal on constitutional challenges to the 1994 Act, error in the essence and presentation of the aggravating fac- tors at trial, and error in jury instructions.279 The Fifth Circuit upheld the constitutionality of the sentencing provisions found in the 1994 Act, ruled that the lower court did not err in refusing to instruct the jury of the consequences of jury deadlock, and, while finding the aggravating factors presented to the jury to be vague, duplicative, and overbroad, found any error to be harmless because the death sentence would have been imposed absent any invalid aggravating factor. 8° On his subsequent appeal before the Supreme Court, Jones pre- sented three main issues: 1. Whether there is a reasonable likelihood that the jury instruc- tions led the jury to believe that deadlock on the penalty recom- mendation would result in a court-imposed sentence less severe than life imprisonment. 2. Whether petitioner was entitled to a jury instruction that the jury's failure to agree on a sentencing recommendation would result in a court-imposed sentence of life imprisonment without possibility of release. 3. Whether the court of appeals correctly held that the submission of invalid nonstatutory aggravating factors was harmless beyond a reason- able doubt.281 Affirming the Fifth Circuit ruling, Justice Thomas wrote the opinion for the majority of the court, with Justice Ginsburg writing in dissent. 2 Justice Thomas began the majority opinion by addressing the consequences of jury deadlock.2 3 He first noted that the Fifth Circuit had ruled that the lower court did not err in refusing Jones' instruction to advise the jury that the judge could sentence the defend- ant to life without the possibility of release upon a jury recommen- dation. The Court then evaluated the Fifth Circuit's determination that 18 U.S.C. § 3593(b)(2)(C) requires the impanelment of a new jury and a second sentencing hearing if the jury is unable to reach a unanimous
278. Id. 279. Jones, 119 S. Ct. 2090 (1999). 280. Jones, 132 F.3d at 252. 281. 119 S. Ct. 2090, 2096 (1999). Jones' brief in the United States Supreme Court is available at 1998 WL 839959 (U.S. Pet. Brief). 282. Jones, 119 S. Ct. 2090-91. 283. Id. at 2097-98. 2000] FederalDeath Penalty 1227 decision.284 Jones argued that any result other than a unanimous ver- dict would transfer the sentencing determination to the purview of the court. The Court, however, found this issue to be immaterial pertain- ing to jury instructions, stating, "The truth of the matter is that the proposed instruction has no bearing on the jury's role in the sentenc- ing process. '28 5 Rather than addressing the responsibilities of the jury, the instruction, in essence, dealt with what would occur if the jury were unable to carry out its responsibilities. Consequently, the jury was not led astray by the omission of such an instruction. Jones, nonetheless, still objected to the omission. While noting that the argument was less than clear, the Court interpreted Jones' argument as being that "a death sentence is arbitrary within the mean- ing of the Eighth Amendment if the jury is not given any bit of infor- mation that might possibly influence an individual juror's voting behavior." 286 The Court found this argument to be without merit and contrary to the long-held views of the Court.287 The Court had never before required a jury to be informed of the consequences of a break- down in deliberation, and the proposed jury instruction would have, in fact, undermined the strong governmental interest in "secur[ing] una- nimity by a comparison of views. ' 28 Moreover, due to the congres- sional silence on the issue, the Court refused to hold that in every capital case the jury be given an instruction concerning the conse- quences of deadlock.28 9 Overall, the jury did not likely experience confusion as to its role and the effect of a jury deadlock. Even assuming that some error had occurred in the instructions, the Court found that the district court's instruction to the jury not to concern itself with the results of their recommendation allowed the jury to set aside any concerns about 29 deadlock, and thus did not affect Jones' substantial rights. " The
284. Id. at 2098. The proffered jury instruction read: In the event, after due deliberation and reflection, the jury is unable to agree on a unanimous decision as to the sentence to be imposed, you should so advise me and I will impose a sentence of life imprisonment without possibility of release.
In the event you are unable to agree on [a sentence of] Life Without Possibility of Release or Death, but you are unanimous that the sentence should not be less than Life Without Possibility of Release, you should report that vote to the Court and the Court will sentence the defendant to Life Without the Possibility of Release. Id. at 2097-98. 285. Id. at 2099. 286. Id. 287. Id. 288. Id. (quoting Allen v. United States, 164 U.S. 492, 501 (1896)). 289. Id. 290. Id. at 2105. 1228 Seattle University Law Review [Vol. 23:1189 court also found that Jones would have been unable to show that the error would prejudice him. In fact, however, the effects of jury confu- sion could also have helped Jones in that the jury could as easily be less inclined to impose a death sentence as be predisposed to do so. The Court then turned to Jones' contentions about the nonstatu- tory aggravating factors. Jones argued that the nonstatutory aggravat- ing factors violated the Eighth Amendment because they were vague, overbroad, and duplicative, and that any harm resulting from their use was not harmless beyond a reasonable doubt. 2 1 Finding that the "double counting" of aggravating factors skews the process in deter- mining the appropriate penalty, the Fifth Circuit ruled that the factors were in error, but that they were harmless beyond a reasonable doubt.292 Taking issue with this finding, the Supreme Court stated that it had "never before held that aggravating factors could be duplicative so as to rendering them constitutionally invalid. "293 Clarifying prece- dent, the Supreme Court noted that all it had ever held is that invalid 2 94 factors may skew the weighing process, but not duplicative ones. Any other construction of the weighing process would necessarily 29 infer that duplicative factors would be invalid. ' The Supreme Court also noted that any potential error by the introduction of similar aggravating factors was diminished by the district court's jury instruc- tion that prevented the jury from simply counting the number of aggravating and mitigating factors and basing their decision on 296 numerical superiority, rather than on pure weight. The Supreme Court also found that the Fifth Circuit erred in ruling that the nonstatutory aggravating factors suffered from vague- ness.297 Noting that the review of such factors is "quite deferential," the Court found that the jury would have had no difficulty evaluating the factors to determine the vulnerability of the victim and the effect of the crime on her family. 298 The Court further ruled that the factors were not overbroad in violation of the Eighth Amendment; for "evi- dence of victim vulnerability and victim impact in a particular case is
291. Id. 292. Id. 293. Id. at 2107. 294. Id. (citing Stringer v. Black, 503 U.S. 222, 232 (1992)). 295. This holding not only called into doubt the ruling of the Fifth Circuit with respect to the "double counting theory," but expressly called into doubt the Tenth Circuit case of United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), upon which the Fifth Circuit, in part, had relied. 296. Jones, 119 S. Ct. at 2107. 297. See id. at 2107-08. 298. Id. at 2108 (quoting Tuilaepa v. California, 512 U.S. 967, 973 (1994)). 2000] FederalDeath Penalty 1229 inherently individualized. ' 299 Even considering the loose drafting of the nonstatutory factors considered by the jury, the Court found that any resultant error would be harmless.3"' Justice Ginsburg, joined by Justice Stevens and Souter, and par- tially by Justice Breyer, presented a vigorous dissent. The dissent argued that the possibility of a flaw in the jury instructions concerning the effect of a deliberative breakdown was too great for their con- science. The dissent noted that "'Capital sentencing should not be... a game of 'chicken,' in which life or death turns on the... happen- stance of whether the particular 'life' jurors or 'death' jurors in each case will be the first to give in, in order to avoid a perceived third sen- 3 1 tencing outcome unacceptable to either set of jurors.""' Moreover, the dissent did not consider the use of the similar aggravating factors to be inconsequential, and criticized the "tolerance of error in this case, and [the Supreme Court's] refusal to face up to it....
V. CONCLUSION
No man is an island, entire of itself; every man is a piece of a conti- nent, a part of the main; ... any man's death diminishes me because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.3" 3 Regardless of the arguments for and against, the federal death penalty is now active and will soon be reimplemented. Nevertheless, the future of capital punishment is uncertain, and the United States federal government's execution of Juan Raul Garza in the new millen- nium will affect the future of the death penalty. In some ways, the federal death penalty has not fulfilled its expectations. For example, the dream of an efficient and speedy death penalty in federal legislation was not practically accomplished by the Drug Kingpin Act or the 1994 Act. In the early days of the nation, executions proceeded quickly after sentencing. Since 1972, however, due to the imposition of procedural safeguards and seemingly limitless appeals in the state courts, those on death row wait very long periods of time to be executed.3 4
299. Id. 300. Id. at 2109-10. 301. Id. at 2116 (quoting Reply brief of Jones at 7-8, n.11). 302. Id. at 2118. 303. Devotions No. 17, in JOHN DONNE, SELECTED PROSE (N. Rhodes ed. 1987). 304. Of those prisoners executed in the states in 1997, they had been on death row for an average of 11 years and one month. See Capital Punishment 1998, supra note 45. This number had risen by eight months from 1996. Id. By 1999, however, the number was reduced by 90 days. See Richard Carelli, Time on Death Row Remains an Eternity, SALT LAKE TRIBUNE, 1230 Seattle University Law Review [Vol. 23:1189
The extremely long wait for the inmate to be executed could itself seem to be cruel and unusual punishment. Seven years ago, a jury imposed the death penalty on Juan Raul Garza. Compared with the speed in which executions were performed in our history, Garza has long awaited the death penalty. In an individual proportionality evaluation, Garza's anxiety may seem inconsequential compared to the gravity of his offenses, yet these years must have affected Garza as he has awaited his execution. As one death row resident put it: I go to sleep and I dream of me sitting down in that chair. I mean it's such a fearful thought. Me walking down the tier, sit- ting down in it, them hooking it up and turning it on... I can wake up, my heart's beating fast, I'm sweating like hell, just like I'd rinsed my head in water .... I feel like I'm going to have a heart attack.3 °5 To many, this anticipation of ultimate punishment may be the true and deserved punishment behind capital sentencing, with the ces- sation of body functioning little more than a formality. This argu- ment, however, is countered by those who argue that blood shedding blood is not justice. The foregoing examples accentuate the emotional basis for one's personal perspective on the ultimate punishment.3 °6 Like it or not, the death penalty is something that will not soon go away. Public expec- tations underlie and support the 1994 Act. In the end, neither Supreme Court jurisprudence nor Congress will change the death penalty or its implementation. As it has for hundreds of years, discus- sion and argument will continue, and emotions will rage. Garza's upcoming execution will serve to accentuate the tension that still exists in the country. The collective effect of Garza's death and others in the future will sway the pendulum of popular opinion in one direction or another, for the modern death penalty is not static. The effect of Garza's execution may not be readily apparent immediately after his execution. The future of the death sentence in America will be determined, in part, by public opinion after it experi- ences executions and responds. Each execution will influence all of us. One day we as a society may find the answer to the death penalty conundrum. Until then, we will be left observing, but in so doing, we are also participating in the end effects of a federal death penalty.
December 13, 1999, at A3. 305. JAMES A. INCIARDI CRIMINAL JUSTICE 509 (3d ed. 1990). 306. For a concise summary of the arguments advanced by both camps in the death penalty debate, see Sandra R. Acosta, Recent Development, Imposing the Death Penalty Upon Drug King- pins, 27 HARV. J. ON LEGIS. 596, 603-06 (1990).